LIBRARY 

OF  THE 

University  of  California. 


OIFT    OF 


THE  Bancroft  Library 
'    ^"?)4$l^- 


V ^    L/y 


^    V-//. 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

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http://www.archive.org/details/eiementsofinternOOhallrich 


X     '^ 


ELEMENTS 


INTERNATIONAL  LAW 


AND 


LAWS    OF   WAE 


By  H.  W.   HALLECK,  LL.D., 


MAJOR-GENERAL  UNITED  STATES  ARMY; 

AUTHOR  OP    "ELEMENTS  OP  MIUTARY  ART   AND  SCIENCE,"    "MINING  LAWS   OF  SPAIN  AND 

MEXICO,"   ETC. 


PREPARED  POR  THE  USE  OF  COLLEGES  AND  PRIVATE  STUDENTS. 


*  «     o       o  'f  .• 


»:  -.  "-■>  •  ^.« 


PHILADELPHIA 

J.     B.     LIPPINCOTT    &    CO. 

1866. 


Entered  according  to  Act  of  Congress,  in  the  year  1866,  by 

H.  W.  HALLECK, 

In  the  Clerk's  OflSce  of  the  District  Court  for  the  Eastern  District  of  Pennsylvania. 


H3 


MPdN 

PREFACE. 


This  abridgment  has  been  prepared  at  the  suggestion  of  a  number 
of  professors  and  instructors  in  our  colleges  and  higher  institutions  of 
learning.  The  experience  of  our  officers,  both  volunteers  and  regulars, 
in  the  great  civil  war  which  has  just  terminated,  has  proved  that  this 
subject  has  been  too  much  neglected,  not  only  in  our  colleges,  but  also 
in  our  two  great  national  schools — the  Military  and  Naval  Academies. 
An  attempt  is  here  made  to  supply  a  suitable  text-book  for  such 
instruction. 

The  plan  of  the  larger  work  has  been  closely  followed,  the  chapters 
are  the  same,  and  only  a  few  of  the  paragraphs  have  been  changed. 
Therefore,  the  instructor  or  student  who  may  desire  to  further  investi- 
gate any  particular  question,  has  only  to  turn  to  the  corresponding  chap- 
ter and  paragraph  of  the  larger  edition,  and  to  refer  to  the  authorities 
there  quoted.  It  should  be  remembered  that  these  authorities  are  not 
quoted  in  support  of  the  author's  opinions,  but  are  often  in  conflict  both 
with  those  opinions  and  with  each  other. 

*In  order  to  diminish  the  size  and  reduce  the  price  of  this  abridgment 
as  much  as  possible,  the  author  has  omitted  most  of  the  discussions  in 
regard  to  the  principles  adopted,  and  also  many  of  the  historical  illustra- 
tions, leaving  these  to  be  supplied  from  the  larger  work,  according  to  the 
judgment  of  the  teacher,  and  the  opportunity  of  the  student. 

H.  W.  H. 
San  Francisco,  Cal.,  May,  1866. 

235129 


CONTENTS 


CHAPTER  I. 

HISTORICAL  SKETCH. 

PAGE 

§  1.     Division  of  the  subject 17 

^  2.     International  law  among  the  Jews 18 

§  3.     Among  the  ancient  Greeks  and  Romans 18 

g  4.     The  Jus  Gentium  of  the  Romans 19 

§  5.     Introduction  of  Christianity 19 

§6.     EflPeets  of  the  Fall  of  the  Roman  Empire 19 

§  7.     International  Law  during  the  dark  ages 20 

§8.     Its  origin  in  Modern  Europe 20 

§9.     Effects  of  Papal  Supremacy 21 

§  10.  Effects  of  the  Reformation 21 

I  11.  Other  causes  of  its  advancement 22 

I  12.  The  Rhodian  Laws,  etc 22 

g  13.  The  Consolato  del  Mare,  etc 23 

§  14.  Writers  prior  to  Grotius 23 

§  15.  Writings  of  Grotius 23 

§  16.  Political  Events  of  this  period 23 

§  17.  Questions  agitated 24 

§  18.  Writers  following  Grotius 24 

§  19.  Political  Events  of  the  period 24 

§  20-  Questions  agitated 24 

§  21.  Writings  of  publicists 24 

§  22.  Political  Events 25 

§  23.  Questions  agitated 25 

§  24.  Writings  of  publicists 25 

g  25.  Political  Events 25 

§  26.   Questions  agitated 26 

§  27.  Writings  of  publicists 26 

§  28.  Judicial  Decisions 26 

§29.  Political  Events 26 

§  30.  Questions  agitated 27 

§  31.  Writings  of  publicists 27 

I  32.  Political  Events 27 

1*  V 


vi  CONTENTS, 

PAQK 

g  33.  Questions  agitated 2S 

§  34.  Writings  of  publicists 28 

§  35.  Judicial  Decisions 28 

§36.  Diplomatic  Papers,  etc 28 

CHAPTER  II. 

NATURE  AND  SOURCES  OF  INTERNATIONAL  LAW. 

^  1.     Definition  of  International  Law 30 

g  2.     General  Divisions 30 

§  3.     Divine  or  Natural  Law 31 

g  4.     Its  application  to  States 31 

§  6.     The  Positive  Law  of  Nations 31 

§  6.     Relations  between  the  Natural  and  Positive  Law 31 

§  7.     Conventional  Law 32 

§  8.     Customary  Law 32 

§9.     Customs  how  far  binding 32 

§  10.  Division  by  Vattel 32 

§  11.  Objections  to  this 33 

g  12.  Other  Divisions 33 

§  13.  Law  not  universal  or  immutable 34 

§  14.  Its  rules  obligatory 34 

§  15.  Violations  how  punished 35 

§16.  Can  a  sovereign  state  be  punished? 35 

§  17.  General  sources  of  International  Law 35 

g  18.  The  Divine  Law 36 

\  19.  Rather  a  test 36 

§20.  History  as  a  Source 36 

g  21.  The  Roman  Civil  Law 37 

\  22.  Decisions  of  Prize  Courts 37 

§23.  Judgments  of  mixed  Tribunals 37 

§24.  Ordinances  and  Commercial  Laws.... 38 

§  25.  Decisions  of  Local  Courts 38 

§  26.  Text-writers 38 

§  27.  Reason  of  their  authority 39 

§  28.  Treaties  and  compacts 39 

§  29.  Their  effect  on  meaning  of  terms 40 

§  30.  Diplomatic  papers 40 

CHAPTER  IIL 

SOVEREIGNTY   OF  STATES. 

§  1.     A  Sovereign  State  Defined 42 

§2.     Distinguished  from  a  nation  or  people 42 

§  3.     A  colony  is  a  part  of  a  state 43 

§  4.     Not  itself  a  state 43 


CONTENTS.  vii 

PAGE 

g  5.     Sovereignty  and  dependence 43 

^  6.     Occasional  obedience 43 

§  7.     Feudal  Vassalage 44 

^8.     These  may  aflfect  sovereignty 44 

g  9.     Effect  of  a  protectorate 45 

§10.  Effect  of  a  union  of  states 45 

§  11.  A  personal  union 45 

§  12.  A  real  union 46 

§  13.  An  incorporate  union 46 

§  14.  A  Federal  Union 46 

§  15.  Confederated  States 46 

g  16.  A  Composite  State 47 

§  17.  Semi-Sovereign  States 47 

§18.  How  Sovereignty  is  acquired 48 

§  19.  Identity  not  affected  by  internal  changes 48 

§  20.  Effect  of  civil  war 48 

§  21.  When  a  new  state  may  be  recognized 49 

§  22.  Recognition  by  whom  made 49 

§  23.  State  sovereignty,  how  lost 49 

§  24.  Changes  in  the  government  of  a  state 49 

§25.  Changes  by  internal  revolution 49 

§  26.  By  dismemberment  of  a  part 50 

§  27.  By  division 50 

§  28.  By  incorporation 51 


CHAPTER  IV. 

RIGHTS  OF   INDEPENDENCE  AND   SELF-PRESERVATION. 

§  1.     Independence  of  a  Sovereign  state 52 

§  2.     May  establish  its  own  Government 52 

§  3.     Choice  of  its  own  rulers 52 

§  4.     Grounds  of  pacific  Interference 53 

§  5.     For  self-security 53 

§6.     This  usually  a  mere  excuse 53 

§7.     Chateaubriand's  views 54 

§  8.     Under  treaty  stipulations 54 

§  9.     On  the  plea  of  humanity 54 

§  10.  By  invitation  of  contending  factions 54 

§  11.  Arbitration  between  parties  in  a  civil  war 55 

§12.  Right  of  arbitrator  to   enforce  his  decision 55 

§  13.  Independence  in  legislation  and  courts 55 

§14.  In  rewards  and  punishments 56 

§  15.  Only  within  its  own  territory 66 

§  16.  Interference  in  cases  of  dependent  states 56 

§  17.  In  case  of  confederated  states 56 

?  18.  Right  of  self-preservation 57 


viii  CONTENTS. 

PAGE 

§  19.  Means  incident  to  this  right 67 

§  20.  May  be  limited  by  treaty 67 

\  21.  By  the  rights  of  others 68 

^  22.  Increase  of  army  and  navy 68 

§23.  Of  fortifications  and  military  schools 58 

§  24.  Extra-territorial  defense 69 

§  25.  Violation  of  territorial  rights 59 

CHAPTER  V. 

RIGHTS  OF   EQUALITY. 

^  1.     Natural  equality  of  states 61 

§  2.     Consequence  i<a  regard  to  rights 61 

§  3.     In  regard  to  titles 61 

§4.     Effect  of  custom  and  treaties 61 

§  5.     The  Pope  and  Emperor  of  Germany 62 

§  6.     Dignity  of  a  state  represented  by  its  ruler 62 

g  7.     DiflBculties  between  ministers 63 

g  8.     Royal  honors 63 

§  9.     Emperors  and  kings 63 

§  10.  Monarchical  sovereigns 64 

g  11.  Semi-sovereign  and  dependent  states 64 

§  12.  Republics 64 

§13.  General  rule  of  equality  and  precedence 64 

§  14.  Usage  of  the  Alternat 65 

§  15.  Diplomatic  language && 

§  16.  Military  and  maritime  ceremonial '. 66 

§  17.  How  regulated 67 

§  18.  In  the  narrow  seas 67 

§  19.  In  foreign  ports  and  on  the  high  seas 67 

§20.  Treaty  regulations 68 

§  21.  General  rules  of  text-writers 68 

§  22.  Salutes  between  ships  and  forts 69 

§  23.  Ships  in  foreign  ports 70 

§  24.  Regulations  of  U.  S.  Army  and  Navy 71 

CHAPTER  VI. 

RIGHTS  OF   PROPERTY  AND  OF  DOMAIN. 

§  1.     Sovereignty  of  a  state 73 

§  2.     Prerogative 73 

§3.     Jura  majestatis  and  regalia 73 

§  4.     Property  and  domain 74 

§5.     Right  of  eminent  domain 74 

§  6.     Right  of  a  state  to  own  property 74 

§  7.     Modes  of  acquisition 75 


CONTENTS.  ix 

PAQB 

§8.     Right  of  disposition  of  territory 75 

§  9.     Authority  to  make  a  valid  transfer 75 

g  10.  Patrimonial  kingdoms 76 

§  11.  Inhabitants  of  such  kingdoms 76 

§  12.  Modern  transfers .* 76 

§  13.  Extent  of  maritime  territory 76 

g  14.  Coasts  and  shores ? 77 

§  15.  Islands 77 

^  16.  Principle  of  the  king's  chambers 78 

§  17.  Difficulties  in  its  application 78 

§  18.  Claims  to  portions  of  the  sea 79 

g  19.  Danish  sound  dues 79 

g  20.  Mare-clausum  and  mare-librum 80 

§  21.  The  Black  Sea 80 

g  22.  The  great  lakes  and  their  outlets 81 

§  23.  Navigable  rivers  as  boundaries 81 

g  24.  Changes  in  dividing  rivers  and  lakes 82 

§  25.  Effects  on  boundaries 82 

§  26.  Rivers  passing  through  several  states 83 

i  27.  Use  of  their  banks 83 

g  28.  Right  of  innocent  passage 83 

§  29.  Modified  by  compact 84 

§30.  The  Rhine  and  other  great  rivers 84 

CHAPTER  VII. 

RIGHTS  OF  LEGISLATION  AND  JURISDICTION. 

§  1.     Exclusive  power  of  legislation I • 85 

§  2.     Law  of  real  property 85 

§  3.     Law  of  personal  property 85 

§  4.     Law  of  contracts 86 

§  5.     Exceptions  to  the  rule  of  comity 86 

§6.     Rule  of  judicial  proceedings 86 

§  7.     Law  of  personal  capacity  and  duty 87 

§8.     Droit  d'aubaine  and  droit  de  retraction 87 

§  9.     Law  of  escheat 88 

§  10.  Foreign  marriages 88 

§  11.  Foreign  divorces 89 

§  12.  Laws  of  trade  and  navigation 89 

§  13.  Laws  of  bankruptcy 90 

§  14.  Law  of  treason  and  other  crimes 90 

§  15.  Judicial  power  of  a  state 90 

§  16.  Jurisdiction  with  respect  to  actions ". 91 

§  17.  Of  a  state  over  its  own  citizens 91 

§  18.  Over  alien  residents 92 

g  19.  Over  real  property 92 

§  20.  Over  personal  property 92 

B 


X  ■  CONTENTS. 

PAGE 

§  21.  Qualification  of  the  rule 93 

\  22.  Origin  of  the  difference 93 

^  23.  Voluntary  assignments  and  assignments  in  bankruptcy 93 

g  24.  Public  and  private  vessels  on  the  high  seas 94 

§  25.  Public  vessels  and  prizes  in  foreign  ports 94 

§  26.  Private  vessels  in  foreign  ports 94 

g  27.  Summary  of  the  judicial  powers  of  a  state 95 

^  28.  Extradition  of  criminals 96 

§  29.  Criminal  sentences ^ 96 

§  30.  Foreign  judgments 96 

§  31.  Judgments  of  prize  courts,  etc.,  in  rem 97 

§  32.  Courts,  how  far  judges  of  their  own  jurisdiction 97 

\  33.  Proof  of  foreign  laws 97 

§  34.  Of  contracts  and  instruments 98 

§  35.  Of  foreign  judgments,  etc 98 

CHAPTER  VIII. 

RIGHTS  OF  LEGATION  AND  TREATY. 

§  1.     Right  of  legation  essential  to  sovereignty 99 

§2.     Of  semi-sovereign  states,  etc 99 

§  3.     How  affected  by  civil  war 99 

§4.     Refusal  to  receive  a  particular  person 100 

§  5.     Conditional  reception 100 

§6.     What  department  may  send  and  receive 100 

§  7.     Art  of  diplomacy 101 

§  8.     Exercise  of  the  right  may  be  restricted  by  treaty 101 

g  9.     By  influence  of  powerful  neighbors 101 

§  10.  Treaties  with  dependent  states 102 

§  11.  Treaty-making  power 102 

§  12.  Treaties  must,  in  general,  be  ratified 102 

^  13.  Exception  in  cases  of  truces,  etc 103 

g  14.  Sponsions 103 

^15.  Legislation  to  give  effect  to  treaties 103 

§  16.  Under  the  Constitution  of  the  United  States 104 

^17.  Case  of  France  in  1831 104 

§  18.  Case  of  Great  Britain  in  1824 104 

§  19.  How  far  a  treaty  operates  propria  vigore 104 

g  20.  Real  and  personal  treaties 105 

§  21.  Other  divisions 105 

§  22.  Equal  and  unequal  treaties 106 

^  23.  Of  guarantee  and  surety 106 

§24.  Of  confederation  and  association 106 

§  25.  Treaties  of  alliance 106 

\  26.  Of  amity  or  friendship 107 

Z  27.  Of  commerce,  boundaries,  etc 107 


CONTENTS.  xi 


CHAPTER  IX. 

RIGHTS   AND  DUTIES  OF   PUBLIC    MINISTERS. 

PAGE 

§  1.     Permanent  legations 108 

^  2.     No  distinction  in  ancient  times 108 

^  3.     Modern  classification 108 

^  4.     Ambassadors,  etc 108 

^  5.     Envoys,  etc 109 

^  <).     Ministers,  etc 109 

^  7.     Charges  d'affaires 109 

^  8.     Secretaries 110 

^  9.     Attaches  and  minister's  family 110 

^  10.  Messengers  and  couriers 110 

^  11.  Domestics  and  servants Ill 

^  12.  Inviolability    of  ministers Ill 

^13.  Exemption  from  all  local  jurisdiction Ill 

§  14.  If  he  plot  against  the  government 112 

§15.  If  he  renounce  his  right  of  exemption 112 

§  16.  If  he  voluntarily  submit  to  local  jurisdiction 112 

§  17.  Extent  of  civil  jurisdiction 113 

§  18.  Of  criminal  jurisdiction 113 

§  19.  Public  ministers,  how  punished 113 

§  20.  Dependents,  how  punished 113 

^  21.  Testimony  of  ministers,  etc 114 

§  22.  Exemption  of  minister's  house,  etc 114 

§23.  His  other  real   estate,  etc 115 

§  24.  Of  taxes  and  duties 115 

§  25.  Freedom  of  religious  worship 115 

§  26.  Letters  of  credence 116 

§  27.  Full  power 116 

§  28.  Instructions .- 117 

§29.  Notification    of   appointments 117 

§  30.  Presentation  and  reception 117 

§  31.  Passports  and  safe-conduct 118 

§  32.  Passage  through  other  states 118 

§  33.  Termination  of  public  missions 118 

\  34.  By  death  of  the  minister 119 

§  35.  By  his  recall 119 

§36.  By  expiration  of  term,  etc 120 

§  37.  By  change  of  government 120 

§  38.  By  his  dismissal 120 

§  39.  Respect  due  to  local  authorities 121 

CHAPTER  X. 

OF  CONSULS  AND  COMMERCIAL  AGENTS. 

§  1.     Origin  of  the  institution  of  consuls 122 

§  2.     General  powers  in  modem  times 122 


Xii  CONTENTS. 

PAGE 

§  3.  Consular  organization 122 

§  4.  Commission  and  exequatur 123 

§  5.  Consuls  have  no  diplomatic  character 123 

§  6.  Are  subject  to  local  jurisdiction 123 

§  7.  They  have  no  rank  except  among  themselves 124 

^  8.  Enjoy  certain  rights  and  exemptions 124 

§9.  Office  distinguished  from  status  of  officers 124 

§  10.  When  they  are  foreigners 125 

^  11.  When  citizens  of  the  country 125 

^  12.  Jurisdiction  over  consuls  in  United  States 125 

§  13.  Powers  of  arbitration 12(5 

§  14.  Marriages  and  divorces  by  consuls 126 

g  15.  The  granting  of  passports 126 

§  16.  Certificates,  etc 127 

§  17-  They  can  afford  no  refuge  from  process 127 

§  18.  Engaging  in  trade  127 

§  19.  Consuls  of  Christian  states  in  the  East 128 

^  20.  Jurisdiction  over  their  own  countrymen 128 

I  21.  Over  foreigners 128 

^  22.  Cannot  be  compulsory 128 

§23.  Reason  of  the  difference ~ 129 

CHAPTER   XL 

MUTUAL  DUTIES  OF  STATES. 

§1.     Rights  and  correlative  duties 130 

§2.     Classification  of  the  duties  of  states 130 

§  3.     Justice  a  perfect  obligation 131 

§4.     States  responsible  for  acts  of  their  rulers 131 

§5.     Acts  of  subordinate  oflicers 131 

jJ  6.     Acts  of  private  citizens  132 

g  7.     If  such  acts  are  ratified  or  not  restrained 132 

^  8,     Piracy  on  sea  and  land 133 

§  9.     Plea  of  emigration  and  expatriation 133 

§  10.  Duties  of  mutual  respect 133 

I  11.  Failure  in  respect  not  always  an  insult 134 

g  12.  Duty  of  trade  and  commerce 134 

^  13.  Case  of  China  and  Japan 134 

^  14.  Mutual  duties  of  humanity 134 

§15.  Sometimes  limited  by  the  duties  of  neutrality 135 

§16.  Duty  of  friendship  and  comity 135 

CHAPTER  XII.  * 

SETTLEMENT  OF   INTERNATIONAL   DISPUTES. 

§  1.     Duty  of  moderation  in  international  disputes 137 

§2.     Modes  of  settlement 137 


CONTENTS.  xiii 

PAGE 

§  3.    Amicable  accommodation 137 

§  4.     Compromise 138 

§  5.     Mediation 138 

\  6.     Arbitration 138 

§7.     Kejection  of  offers  to  arbitrate 139 

g  8.     Conferences  and  congresses 139 

g  9.     Ketortion 139 

§  10.  Retaliation 140 

I  11.  Reprisals 140 

§  12.  General  and  special  reprisals 140 

g  13.  Positive  and  negative  reprisals 140 

§  14.  Seizure 141 

g  15.  Right  to  be  first  proved 141 

g  16.  Reprisals  upon  persons 142 

§17.  In  the  punishment  of  individual  offenders 142 

§18.  Where  his  government  assumes  his  act 142 

g  19.  Case  of  McLeod 142 

g  20.  Embargoes 142 

g  21.  Where  reprisals,  etc.,  are  followed  by  war 143 

g  22.  Who  grants  reprisals,  etc 143 

g  23.  Not  in  favor  of  foreigners 143 

g  24.  May  in  favor  of  domiciled  aliens 143 

CHAPTER  XIII. 

JUST  CAUSES  OF  WAR. 

g  1.    Wars  without  just  cause 145 

g  2.     Reasons  and  motives  of  war 145 

g  3.     Justifiable  causes 145 

g  4.    Wars  to  secure  what  belongs  to  us 146 

g  5.     To  punish  an  aggression 146 

g  6.     To  protect  us  from  threatened  danger 146 

g  7.    Against  the  aggrandizement  of  a  neighbor 147 

g  8.     The  motives  of  a  war 147 

g  9.     Commendable  motives 147 

g  10.  Vicious  motives 148 

g  11.  Pretexts 148 

g  12.  Early  Christians  opposed  to  all  wars 148 

g  13.  Modern  writers 149 

g  14.  Dymond  and  Wayland 149 

CHAPTER  XIV. 

DIFFERENT  KINDS  OF  WARS. 

g  1.    Definition  of  war 150 

g  2.    Divisions  by  military  writers 150 

2 


xiv  CONTENTS. 

PAGE 

§  3.     By  historians 150 

§  4.     By  publicists 151 

§5.     Wars  of  insurrection  and  rebellion 151 

§  6.     Wars  of  revolution 151 

§  7.     Wars  of  independence 152 

§8.     Wars  of  opinion 152 

\  9.     Civil  wars 152 

§  10.  General  laws  of  war  applied  to  civil  wars 153 

^11.  This  implies  a  recognition  of  rebel  government 153 

§  12.  Rebels  nevertheless  amenable  to  civil  law 153 

§  13.  Wars  of  conquest 153 

§  14.  National  wars 154 

§  15.  Wars  of  intervention 154 

§  16.  Public  wars 154 

§  17.  Private  wars 155 

\  18.  Mixed  wars 155 

§  19.  Perfect  and  imperfect  wars 156 

§  20.  Solemn  and  non-solemn  wars 156 

g  21.  Lawful  and  unlawful  wars 157 

CHAPTER  XV. 

DECLARATION  OF  WAR  AND  ITS  EFFECTS. 

§  1.     By  whom  war  is  to  be  declared 158 

§2.     Ancient  modes  of  declaration 158 

§  3.     Modern  practice 158 

§4.     Declaration  sometimes  omitted 159 

§  5.     Conditional  declaration 159 

§  6.     Offers  after  declaration 159 

§  7.     Object  of  declaration  in  a  defensive  war 159 

\  8.     Effect  on  individuals 160 

§  9.     On  commerce,  etc 160 

§  10.  Carrying  supplies  to  a  colony,  etc 160 

§  11.  Only  exception  to  a  rule  of  non-intercourse 161 

§  12.  Effect  on  subjects  of  an  ally 161 

§13.  On  subjects  of  an  enemy  in  our  territory 161 

§  14.  Laws  of  particular  states 162 

§  15.  Enemy's  property  in  territory  of  belligerents 162 

\  16.  Conduct  of  the  belligerents  in  the  Crimean  war 163 

§  17.  Debts  due  an  enemy 163 

§  18.  Distinction  between  public  and  private  debts 164 

§  19.  Distinction  made  by  English  text-writers 164 

§20.  Examples  of  its  enforcement 165 

§21.  Commencement  of  war,  how  determined 165 

§  22.  In  regard  to  neutrals 165 

§23.  Effect  of  declaration  of  war  on  treaties 166 


CONTENTS.  XV 

PAGE 

?  24.  On  local  civil  laws 166 

§  25.  Declaration  of  martial  law 167 

§  26.  Martial  and  military  law  distinguished 168 

§  27.  Martial  law  in  European  countries 168 

g  28.  Martial  law  in  the  United  States 169 

J  29.  Writ  of  habeas  corpus 170 

§  30.  Practice  of  our  government  in  regard  to  this  writ 171 

§  31.  These  questions  determined  by  local  law 171 

CHAPTER  XVI. 

MEANS  AND  INSTRUMENTS  FOR  CARRYING  ON  WAR. 

§  1.     Duty  to  serve  and  defend  the  state 172 

§  2.     Certain  classes  usually  exempted 172 

§  3.     Levies  in  mass 172 

§  4.     Power  to  raise  troops 173 

§  5.     Duty  of  a  state  to  support  its  troops 173 

§  6.     Unpaid  troops 173 

§  7.     Use  of  mercenaries : 174 

§  8.     Partizan  and  guerrilla  troops 174 

§  9.     Guerrilla  bands  to  be  distinguished  from  levies  en  masse 175 

1  10.  Privateering..* 175 

2  11,  Its  advantages  and  evils 175 

§  12.  EflForts  to  abolish  it 176 

g  13.  Attitude  of  the  United  States 176 

§  14.  Privateers,  by  whom  commissioned 176 

§  15.  Vessels  of  neutral  states  acting  as  privateers 177 

§  16.  If  declared  pirates  by  treaty  or  local  law 177 

§  17.  Implements  of  war 178 

§  18.  Use  of  poisoned  weapons 179 

§  19.  Poisoning  wells,  food,  etc 179 

§  20.  Assassination,  etc 179 

I  21.  Surprises 180 

§  22.  Allowable  deceptions 181 

§  23.  Stratagems,  what  allowed 181 

I  24.  What  are  forbidden 182 

§  25.  Deceitful  intelligence 182 

§  26.  Use  of  spies 183 

§27.  Military  treachery,  perfidy,  etc 184 

CHAPTER  XVII. 

THE  ENEMY  AND  HIS  ALLIES. 

§  1.     Difference  between  public  and  private  enemies 185 

§  2.     Status  of  legal  hostility 185 

§  3.     Difference  of  treatment 185 


V 


> 


xvi  CONTENTS. 

FAGS 

g  4.  Allies  not  necessarily  associates  in  war 186 

g  6.  If  an  ally  of  the  enemy  engage  in  hostilities 186 

§  6.  Warlike  alliance  made  during  a  war 186 

g  7.  Warlike  alliance  made  before  a  war 186 

§  8.  An  ofiFensive  alliance  made  before  a  war 187 

§9.  A  defensive  alliance 187 

§  10.  Obligation  of  an  alliance  determined  by  justness  of  the  war 187 

§11.  Treaties  of  subsidy  and  succor 188 

§  12.  Capitulations  for  mercenaries 188 

§  13.  Treaty  of  guarantee 188 

§  14.  Warlike  associates 188 

§  15.  No  declaration  necessary  against  enemy's  associates 188 

216.  Policy  of  treating  enemy's  allies  as  friends 189 

CHAPTER  XVIII. 

RIGHTS  OF  WAR  AS  TO  ENEMY'S  PERSON. 

g  1.     General  rights  as  to  enemy's  person 190 

g  2.     Limitation  of  right  to  take  life 190 

I  3.     Exemption  of  non-combatants 191 

§4.     Exemption  may  be  forfeited 191 

§5.    Exceptions  to  rule  of  exemption ^ 192 

§  6.     Prisoners  entitled  to  quarter 192 

§  7.     Made  slaves  in  ancient  times 192 

§  8.     Ransom  and  exchange 193 

§  9.     No  positive  obligation  to  exchange 193 

§10.  Moral  obligations  of  the  state 193 

§  11.  Release  on  parole 194 

§12.  Unijted  States  Regulations  in  regard  to  paroles 194 

§  13.  Duty  of  a  state  when  it  forbids  paroling 195 

§14.  General  rule  for  support  of  prisoners 195 

§  15.  Where  exchanges  cannot  be  eflfected 196 

§  16.  Character  of  support  to  be  given 196 

§17.  Cases  of  ill-treatment  and  starvation 197 

§  18.  Where  the  captor  is  unable  to  support  his  prisoners 197 

§  19.  May  he  kill  them  in  certain  cases  ? 198 

§  20.  This  forbidden  by  modern  law 198 

§21.  Useless  defense  of  a  place 198 

§  22,  Sacking  a  captured  town 198 

§  23.  Examples 199 

§  24.  Fugitives  and  deserters 199 

§  25.  Rule  of  reciprocity 199 

§  26.  Limitation  of  the  rule 200 

§  27.  Special  cases  where  quarter  may  be  refused 200 

§  28.  Disguise  and  perfidy 201 

§  29.  War-rebels,  etc 201 

§  30,  Limitation  as  to  time  of  punishing  military  offenses 202 


CONTENTS.  xvii 

CHAPTER  XIX. 

ENEMY'S  PROPERTY  ON  LAND. 

PAGE 

§  1.     General  right  of  capture  modified  by  usage 204 

§  2.     Rules  different  for  different  kinds  of  property 204 

§  3.    Distinction  between  movables  and  immovables 204 

t^  ?  4.    ^Title^o  real  property 205 

§  5,    Who  may  purchase..". 205 

§6.     Purchase  by  a  neutral  state 206 

g  7.    Movables 206 

§  8.     Documentary  evidence  of  debts 207 

§  9.     Public  archives,  etc 207 

I  10.  Works  of  art,  etc 208 

§  11.  Civil  structures  and  monuments 208 

§  12.  Private  property  on  land 209 

§  13.  General  exceptions  to  rule  of  exemption 209 

§  14.  Penalty  for  military  offenses 210 

§  15.  Military  contributions 210 

§  16.  Of  hostile  populations 211 

§  17.  Captures  on  the  battle  field 211 

§18.  Useless  destruction  of  enemy's  property 212 

§  19.  Laying  waste  a  country 212 

§20.  Rule  of  moderation 213 

§  21.  All  booty  belongs  primarily  to  the  state 214 

g  22.  Distribution  in  different  states 214 

CHAPTER  XX. 

ENEMY'S  PROPERTY  ON  THE  HIGH  SEAS. 

§  1.     No  relaxation  of  ancient  rules  as  to  maritime  captures 215 

§  2.     Attempts  to  modify  it 215 

§  3.     Present  rule 215 

§  4.     Difficulties  in  its  application 216 

§  5.     Ownership  at  time  of  capture 216 

§  6.     Rule  as  to  consignee.... 217 

§  7.     Contract  and  shipment  made  in  contemplation  of  war 217 

§  8.     Contract  made  before  and  shipment  in  war 217 

§  9.     If  both  be  made  in  time  of  peace 217 

§  10.  Shipment  at  risk  of  neutral  consignee 217 

§  11.  If  neutral  consignor  become  an  enemy  during  voyage 218 

§  12.  Acceptance  in  transitu  by  neutral  consignee 218 

§  13.  Change  of  ownership  by  stoppage  in  transitu 218 

§  14.  National  character  of  goods 219 

§  15.  Transfer  of  enemy's  ships  to  neutrals 219 

I  16.  Ships  of  war,  etc 220 

§  17.  General  rule  as  to  character  of  ships  and  goods 220 

I  18.  Effect  of  liens 220 

2*  C 


xviii  CONTENTS. 

FA6K 

§  19.  Documentary  proofs  of  ownership 221 

§  20.  Vessels  of  discovery 221 

\  21.  Fishing-boats... 222 

§22.  Cases  of  shipwreck 222 

CHAPTER  XXI. 

TRADE  WITH  THE  ENEMY. 

§  1.    All  property  of  subjects  engaged  in  trade  with  the  enemy  liable  to  confis- 
cation   223 

§  2.     Same  rule  applicable  to  subjects  of  an  ally 223 

§  3.     Rule  rigorously  enforced 223 

2  4.     Exceptions  to  rule 224 

§  5.     Withdrawal  from  enemy's  country  at  beginning  of  war 224 

§6.     Distinction  between  cases  of  domicil  and  mere  residence 224 

g  7.    "Withdrawal  by  a  mere  resident 225 

§8.     Attempts  to  extend  the  exception 226 

§  9.     Where  order  of  shipment  cannot  be  countermanded 225 

g  10.  Good  faith  or  a  mistake  no  defense 226 

^  11.  Trade  through  a  neutral  port 226 

g  12.  Continuous  voyages 226 

§  13.  When  offense  is  completed 226 

§14.  Share  of  partner  in  neutral  house 227 

\  15.  Transfer  of  ships 227 

§16.  Regularity  of  papers  not  conclusive 227 

§  17.  Trade  by  stranger  in  enemy's  country 228 

§18.  Distinction  as  to  native  subject 228 

§  19.  Acceptance  of  license  from  enemy 228 

§  20.  Trade  with  possessions  and  colonies  of  enemy 229 

CHAPTER  XXII. 

RIGHTS  AND  DUTIES  OF  NEUTRALS. 

§  1.     Neutrality  in  war 230 

§  2.     Qualified  neutrality 230 

§3.     Neutrality  must  be  observed  and  enforced 231 

§  4.     No  hostilities  to  be  permitted  within  neutral  jurisdiction 231 

§  5.     Passage  of  troops  through  neutral  territory 232 

§  6.     Pretended  exception  of  Bynkershock 232 

§7.     Opinion  of  European  and  American  writers 232 

§  8.     Cases  of  the  "  Caroline"  and  the  "  Florida.".. 233 

§  9.     Belligerent  vessels  may  be  excluded  from  neutral  ports 233 

§  10.  Right  of  asylum 233 

§  11.  When  this  right  is  presumed 234 

§  12.  Duties  of  belligerents  while  in  neutral  waters 234 

§  13.  Distinction  in  regard  to  asylum  to  troops 235 


CONTENTS,  xix 

PAQB 

§  14.  United  States  on  enlistments  in  neutral  territory 235 

§15.  Loans  of  money  by  neutrals 236 

§16.  Pursuit  of  enemy  from  neutral  ports 236 

§  17.  Passage  over  neutral  waters 236 

g  18.  Municipal  laws  enforcing  neutrality 237 

\  19.  Laws  of  the  United  States 237 

\  20    Laws  of  Great  Britain 238 

§21.  Protection  of  property  in  neutral  territory 238 

§  22.  Kestitution  of  property  captured  in  neutral  territory 238 

§  23.  If  such  property  be  in  possession  of  neutral 239 

§  24.  Decisions  in  the  United  States 239 

§  25.  Purchases  in  foreign  ports 239 

§26.  If  condemned  in  captor's  country 240 

§27.  In  cases  of  illegal  equipment  and  outfit 240 

CHAPTER  XXIIL 

LAW  OF  SIEGES  AND  BLOCKADES. 

§  1.    No  intercourse  with  a  place  besieged  or  blockaded 241 

§  2.     Authority  to  institute  sieges  and  blockades 241 

§3.     Distinction    between  them 241 

§4.     Constructive  or  paper  blockades 242 

§5.    Ancient  text-writers  and  treaties 242 

§  6.     In  the  wars  of  Napoleon 243 

§  7.     Declaration  of  1854  and  1856 243 

§  8.     These  simply  aflBrm  former  rule 243 

§9.     De  facto  and  public  blockades 243 

§  10.  Temporary  absence  of  blockading  force  produced  by  accident 244 

§11.  If  driven  away  by  force 244 

§  12.  If  removed  for  other  duty 245 

§  13.  If  blockade  be  irregularly  maintained 245 

§  14.  Effect  of  maritime  blockades  on  interior  communications 245 

§  15.  Of  a  siege  on  communications  by  sea '. 246 

§16.  Breach  of  blockade  a  criminal  act 246 

§17.  Public  notification  charges  parties  with  knowledge 246 

§  18.  What  constitutes  a  public  notification 247 

§  19.  Effect  of  general  notoriety 247 

§  20.  Case  which  precludes  denial  of  knowledge 248 

§  21.  "When  presumption  of  knowledge  may  be  rebutted 248 

§  22.  Proof  of  actual  knowledge  or  warning 248 

§  23.  Attempt  to  enter  a  blockaded  port 248 

§  24.  Inception  of  voyage 249 

§  25.  Distant  voyages 249 

§  26,  The  case  of  de  facto  blockades 249 

§  27.  When  presumption  of  intention  to  enter  cannot  be  repelled 250 

§  28.  Neutral  vessel  entering  in  ballast 250 


XX  CONTENTS. 

PAGE 

§29.  Declarations  of  master 250 

§  30.  Delay  in  obeying  warning 251 

§  31.  Disregard  of  warning 251 

§  32.  When  ingress  is  excused 251 

§33.  Violation  of  blockade  by  egress 252 

§  34.  When  egress  is  allowed 252 

§35.  Penalty  for  breach  of  blockade 262 

§  36.  When  cargo  is  exempted  from  condemnation 253 

§37.  Duration  of  offense 253 

CHAPTER  XXIV. 

CONTRABAND  OF  WAR. 

§  1.     Definition  of  contraband 255 

§  2.     Contraband  articles  confiscated .'....  255 

§  3.    Ancient  rule  in  regard  to  ships 255 

§  4.     Modern  rule 256 

§5.     Cases  where  the  ship  is  also  condemned 266 

§  6.     Plea  of  ignorance  or  force 256 

§7.     Inception  of  voyage  completes  offense 256 

§  8.     Return  voyage 257 

§9.     If  not  contraband  at  time  of  seizure 257 

§  10.  Transfer  from  one  port  to  another 257 

§  11.  If  for  enemy's  use  in  a  neutral  port 257 

§12.  Example  of  the  Commercen 258 

§  13.  Disagreement  as  to  what  particular  articles  are  contraband 258 

§  14.  Opinion  of  the  older  publicists 258 

§  16.  Of  modern  writers 258 

§  16.  Discordancy  of  earlier  treaties  and  ordinances 259 

§17.  Of  those  of  more  recent  date 259 

§  18.  Decisions  of  prize  courts 259 

§  19.  There  is  no  positive  rule 259 

§  20.  Munitions  of  war*. 260 

§  21.  Manufactured  articles 260 

§  22.  Unwrought  articles 260 

§23.  Intended  use  deduced  from  destination 261 

§  24.  Provisions 262 

§  25.  Ancient  rule  of  preemption '. 262 

§  26,  British  rule  of  preemption 262 

§  27.  Contested  by  others 262 

CHAPTER  XXV. 

RIGHT  OF  VISITATION  AND  SEARCH. 

§  1.     General  exemption  of  merchant  vessels  on  the  high  seas 264 

§2.    Right  of  search  a  belligerent  right  only 264 


CONTENTS. 


XXI 


PA6S 

g  3.     Claim  of  England  to  visit  in  time  of  peace 264 

g  4.     Claim  denied  by  the  United  States 264 

§  5.    Views  of  the  United  States  sustained  by  American  publicists 265 

§  6.     By  continental  writers 265 

§7.     By  the  older  English  writers 265 

§8.     Origin  of  the  discussion 266 

g  9.     Its  final  settlement 266 

§  10.  Visitation  and  search  in  time  of  war 266 

g  11.  English  views  as  to  extent  of  search 266 

§  12.  American  views 267 

§  13.  Continental  writers 267 

g  14.  Enforcement  of  the  right  of  search 267 

g  15.  It  must  be  exercised  in  a  lawful  manner 267 

^  16.  Penalty  for  resisting  search 268 

§17.  Vessels  of  war  are  exempted  from  search 268 

g  18.  Can  they  exempt  their  convoys  ? 268 

§  19.  English  authorities 268 

g  20.  Continental  writers 269 

§  21.  American  authorities 269 

§  22.  EfiFect  of  enemy's  convoy 269 

§23.  Effect  of  resistance  of  neutral  master 269 

§24.  Neutral  property  in  enemy's  vessels 269 

§  25.  Documents  required  to  prove  neutral  character ."...  269 

§  26.  Concealment  of  papers 270 

§  27.  Spoliation  of  papers 270 

§  28.  Use  of  false  papers 271 

§29.  Impressment  of  seamen  from  neutral  vessels 271 

§  30.  American  rule  on  this  subject 272 

CHAPTER  XXVI. 

VIOLATION  OF  NEUTRAL  DUTIES. 

§  1.  The  rights  and  duties  of  neutrality  are  correlative 273 

g  2.  Responsibility  of  individuals  for  violation  of  neutral  duties 273 

g  3.  Criminal  character  of  such  violations  of  duty 273 

g  4.  When  the  state  becomes  responsible 274 

g  5.  Neutral  vessels  transporting  enemy's  goods 274 

g  6.  The  goods  so  transported 274 

g  7.  The  United  States  on  the  rule  of  "Free  ships,  free  goods." 275 

g  8.  Neutral  goods  in  enemy's  vessels 275 

g  9.  The  two  maxims  distinct 275 

g  10.  France  and  England  as  allies 275 

g  11.  DeclaratioH  of  1854 275 

g  12.  Declaration  of  the  Congress  of  Paris 276 

g  13.  Proof  of  neutral  goods  in  enemy's  ships 276 

g  14.  Neutral  ships  under  enemy's  flag  and  pass 276 


xxii  CONTENTS. 

PAGE 

g  15.  Neutral  goods  in  such  vessels 277 

§16.  Neutral  vessel  in  enemy's  service 277 

§  17.  Transporting  military  persons 277 

§18.  Conveying  enemy's  dispatches 278 

§19.  Exception  in  case  of  mail-packets 278 

§  20.  In  case  of  enemy's  ambassadors  in  neutral  state 279 

§  21.  Case  of  the  Trent 279 

§  22.  Rule  of  1756 280 

§  23.  Its  attempted  extension 280 

CHAPTER  XXVII. 
PACIFIC  INTERCOURSE  OF  BELLIGERENTS. 

§  1.     Object  and  character  of  commercia  belli 281 

§  2.     Military  compacts  and  conventions 281 

g  3.     Suspensions  of  arms,  truces,  and  conventions 281 

§  4.    Authority  to  make  them 282 

§5,     Acts  of  individuals  ignorant  of  a  truce 283 

§  6.     What  may  be  done  during  a  truce 283 

§  7.     Conditional  and  special  truces 284 

§  8.     Their  interpretation 285 

§9.     Renewal  of  hostilities 285 

g  10.  Capitulation 286 

§  11.  Individual  promises 287 

g  12.  Passports  and  safe-conducts 287 

g  13.  When  and  how  revoked 288 

g  14.  Their  violation,  how  punished 288 

g  15.  Safe-guards 288 

g  16.  Cartels  for  prisoners 289 

g  17.  Cartel  ships 289 

g  18.  Their  rights  and  duties 289 

g  19.  Ransom  of  prisoners  of  war 290 

g  20.  Modern  contracts  of  ransom 290 

g  21.  In  the  United  States  and  other  countries 291 

g  22.  If  given  by  one  ally,  is  binding  upon  the  others 291 

g  23.  If  ransomed  vessel  be  lost 291 

g  24.  If  it  be  recaptured 292 

g  25.  If  hostage  be  captured 292 

g  26.  Suits  on  contracts  of  ransom 292 

g  27.  Flags  of  truce 293 

g  28.  Flags  of  protection 294 

CHAPTER  XXVIII. 

LICENSES  TO  TRADE. 

g  1.     Licenses  to  trade 296 

g  2.    A  general  license 296 


CONTENTS.  xxiii 

PAQB 

^3.    A  Special  license 296 

§  4.     Judicial  decisions  on  licenses 297 

§  5.     Cause  of  want  of  uniformity  in  English  decisions 297 

§  6.     Representations  of  grantee ,.,...... 297 

§  7.    Intention  of  grantor 298 

§  8.     Persons  entitled  to  use  a  license 298 

g  9.     Where  the  grantee  acts  as  agent  for  others 298 

I  10.  Character  of  vessel 298 

§11.  Exception  of  a  particular  flag 299 

§  12.  Change  of  national  character  during  voyage 299 

§  13.  Protection  before  and  after  voyage 300 

§  14.  Quality  and  quantity  of  goods 300 

§  15.  Protection  to  enemy's  goods 300 

§  16.  License  to  an  alien  enemy 301 

§  17.  If  cargo  be  injured 301 

§  18.  If  it  cannot  be  landed 301 

§  19.  Compulsory  change  of  cargo 301 

§20.  License  to  import  no  protection  for  re-exportation 302 

g  21.  Course  of  voyage 302 

I  22.  Change  of  destination 302 

§  23.  Intended  ulterior  destination 302 

§  24.  Condition  to  call  for  convoy 303 

g  25.  Capture  before  and  after  deviation 303 

§  2Q.  Time  limited  in  license 303 

§  27.  A  license  has  no  retrospective  action 304 

§28.  If  not  on  board  or  not  endorsed 304 

§  29.  If  its  date  be  altered 304 

§  30.  Breach  of  blockade,  etc.,  by  a  licensed  vessel 304 

CHAPTEE  XXIX. 

DETERMINATION  OF  NATIONAL  CHARACTER. 

§  1.     National  character,  how  determined 305 

§  2.     Allegiance  from  origin 305 

§  3.     Naturalization 305 

§  4.     Apparent  conflict  between  allegiance  and  naturalization..... 305 

§  5.     Allegiance  does  not  affect  personal  domicil 306 

§  6.     Nor  commercial  domicil 306 

§  7.    Domicil  defined 307 

§  8.     Division  of  domicil 307 

§9.     Intention,  the  controlling  principle 307 

§  10.  Necessity  of  some  overt  act 307 

§  11.  Domicil  from  residence 308 

§  12.  Effect  of  domestic  ties 308 

§  13.  Exercise  of  political  right,  etc 308 

3  14.  Character  and  extent  of  business 308 


xxiv  CONTENTS. 

PAGE 

§  15.  Time  of  residence 309 

§  16.  Distinction  in  favor  of  American  merchants 309 

§17.  Presumption  arising  from  foreign  residence 309 

§  18.  Evidence  to  repel  this  presumption 310 

§  19.  Of  ministers  and  consuls 310 

I  20.  Other  public  ofiBcers 310 

§  21.  A  wife,  minor,  student,  servant 311 

§  22.  A  soldier,  prisoner,  exile,  and  fugitive 311 

§23.  Effect  of  municipal  laws  on  domicil 312 

§  24.  Of  treaties,  etc 312 

§  25.  Temporary  residence 312 

§  26.  A  merchant  may  have  several  domicils 312 

§  27.  Native  character  easily  reverts 313 

§  28.  Leaving  and  returning  to  native  country 313 

§29.  National  character  during  war 313 

§  30.  Effect  of  military  occupation 314 

§  31.  Of  complete  conquest 314 

§32.  Of  cession  without  occupation 314 

§  33.  Of  revolution  and  insurrection 314 

§  34.  Of  a  particular  trade 316 

§  35.  This  character  differs  from  that  derived  from  domicil 315 

§  36.  Of  habitual  employment 316 

§  37.  National  character  of  ships  and  goods 316 


CHAPTER  XXX. 

RIGHTS  AND  DUTIES  OF  CAPTORS. 

§  1.     Of  captures  generally 317 

§2.     What  constitutes  a  maritime  capture 317 

§  3.     To  whose  benefit  it  enures 317 

§  4.     Title  when  changed 317 

§5.     Where  prizes  must  be  taken 317 

§  6.     Of  joint  captures  generally 318 

§  7.     Constructive  capture  by  public  vessels 318 

§  8.     When  actual  sight  is  not  necessary 318 

§  9.     Of  joint  chase 318 

«f  10.  Services  before  and  after  capture 319 

§11.  Vessels  associated  in  same  service 319 

§  12.  Mere  association  not  suflBcient 319 

§13.  Convoying  ships 319 

§  14.  Detached  vessels 319 

§15.  Joint  capture  by  land  and  sea  forces 320 

§  16.  By  public  ships  of  allies 320 

§  17.  Constructive  joint  captures  not  allowed  to  privateers 320 

§  18.  Captures  by  revenue  cutters 320 

§  19.  By  boats 321 


CONTENTS.  XXV 

PAGE 

I  20.  By  tenders 321 

§  21.  By  prize-masters 321 

§22.  By  non-commissioned  vessels 321 

§23.  Man-of-war  as  joint  captor  cannot  dispossess  a  privateer 321 

§  24.  Effect  of  fraud  on  claims  for  joint  capture 321 

§  25.  Distribution  of  prize  to  joint  captors 322 

§  26.  Of  bounty  or  head  money 322 

§  27.  Collusive  captures 322 

§  28.  Forfeiture  of  claims  to  prize 322 

§  29.  Probable  cause  of  seizure  usually  sufficient 323 

g  30.  When  captors  are  liable  for  costs  and  damages 323 

g  31.  Duties  of  prize  master 323 

CHAPTER  XXXI. 

PRIZE  COURTS,  THEIR  JURISDICTION  AND  PROCEEDINGS. 

g  1.    Validity  of  a  maritime  capture  how  determined 324 

g  2.     Why  prize  courts  of  other  countries  cannot  condemn 324 

g  3.     Apparent  exceptions  where  neutral  rights  have  been  infringed 324 

g  4.     If  captor  have  no  prize  court  or  maritime  ports 325 

g  5.     Attempts  of  neutrals  to  assume  prize  jurisdiction 325 

g  6.     Distinction  between  municipal  and  prize  courts 325 

g  7.    English  prize  courts 325 

g  8.     Prize  courts  of  the  United  States 325 

g  9.     The  President  cannot  confer  prize  jurisdiction 326 

g  10.  Court  may  sit  in  country  of  ally 326 

g  11.  But  not  in  neutral  territory 326 

g  12.  In  conquered  territory 327 

g  13.  Extent  of  jurisdiction  of  prize  courts 327 

g  14.  Location  of  prize 328 

g  15.  Decision  of  competent  court  conclusive 328 

g  16.  When  jurisdiction  may  be  inquired  into 328 

g  17.  State  responsible  for  unjust  condemnation 328 

g  18.  When  indemnity  may  be  demanded 329 

g  19.  Laws  governing  prize  courts 329 

g  20.  Their  proceedings  differ  from  those  of  other  courts 329 

CHAPTER  XXXII. 

RIGHTS  OF  MILITARY  OCCUPATION. 

g  1.    Distinction  between  military  occupation  and  complete  conquest 330 

g  2.     When  rights  of  military  occupation  begin 331 

g  3.     Submission  sufficient 331 

g  4.     Efi'ect  upon  political  laws 331 

g  5.     Upon  municipal  laws 332 

3  D 


xxvi  CONTENTS. 

PA08 

§  6.     Punishment  of  crimes  in  such  territory 332 

§  7.     EflFect  of  military  occupation  under  the  laws  of  England.. 333 

§  8.     Under  the  constitution  of  the  United  States 333 

§  9.     Relations  of  inhabitants  in  regard  to  foreign  states 334 

§  10.  In  regard  to  States  of  the  union 335 

§  11.  Collection  and  use  of  revenues  in  such  territory 335 

§  12.  Transfer  of  private  property 335 

§  13.  Our  own  territory  in  the  military  occupation  of  an  enemy 336 

g  14.  Neutral  territory  so  occupied.. .• 336 

§15.  Allegiance  of  inhabitants  of  occupied  territory 336 

§  16.  Implied  obligations  of  the  conquered 336 

§  17.  Military  insurrections 337 

§  18.  Alienations  of  territory  occupied  by  an  enemy 337 

§  19.  Effect  of  military  occupation  on  incorporeal  rights 338 

^  20.  Debts  due  the  displaced  government 338 

CHAPTER  XXXIII. 

RIGHTS  OF  COMPLETE  CONQUEST. 

g  1.     Conquest,  how  completed 340 

§2.     Acquisitions  of  parts  of  a  state 340 

§3.     Subjugation  of  an  entire  state 340 

§4.     Retroactive  effect  of  confirmation  of  conquest 341 

g  5.     Transfer  of  personal  allegiance  by  conquest 341 

§  6.     The  assent  of  the  subject  required 341 

§  7.     Such  assent  determined  by  domicil 342 

§  8.     Reason  of  this  rule 342 

g  9.     Its  application  to  foreign  residents ; 343 

§  10.  Rule  may  be  varied  by  treaty,  etc 343 

g  11.  Right  to  citizenship  under  new  sovereignty 343 

§  12.  English  law  on  this  subject 344 

§  13.  American  decisions ...  344 

§  14.  Laws  of  the  conquered  territory 344 

§  15.  Conquered  territory  under  British  law 345 

\  16.  Under  the  United  States 345 

§  17,  How  far  laws  of  military  occupation  continue  after  complete  conquest 345 

§  18.  Laws  of  conquered  territory  opposed  to  constitution  of  the  new  state 346 

§19.  To  the  laws  of  the  new  sovereignty 346 

§  20.  Implied  will  of  the  conqueror 346 

§  21.  Distinction  in  English  law  between  conquered  and  discovered  territory....  347 

§  22.  Decisions  of  U.  S.  Supreme  Court 347 

§  23.  Title  to  private  property 347 

§  24.  Necessity  of  remedial  laws 348 

§  25.  Effect  of  conquest  on  the  property  of  the  state 348 

g  26.  Alienations  by  conqueror  after  complete  conquest.... 348 

§  27.  Payment  of  state  debts  to  conqueror 349 


CONTENTS.  xxvii 

CHAPTER  XXXIV. 

TREATIES  OF   PEACE. 

PAOB 

I  1.     Peace,  the  end  and  object  of  war ; 350 

§  2.     Powers  to  make  war  and  peace  may  be  distinct 350 

§  3.     In  the  United  States 350 

§4.     May  a  prisoner  of  war  make  a  treaty  of  peace? 350 

§  6.     Implied  power  of  alienation  of  territory 351 

§  6.     Duty  of  compensation  to  individuals 351 

§  7.     Joint  treaty  of  peace  by  allies 351 

I  8.     General  character  of  a  treaty  of  peace 352 

§  9.     It  implies  an  amnesty 352 

§  10.  New  grievances  from  same  cause 352 

§  11.  Claims  unconnected  with  causes  of  the  war 352 

§  12.  Principle  of  uti  possidetes 352 

g  13.  Treaty  of  peace  binds  the  whole  state 353 

§  14.  When  its  obligations  commence 353 

^  15.  Criminal  responsibility  of  individuals 353 

§16.  Civil  responsibility  for  damages 354 

§  17.  Constructive  and  actual  knowledge  of  peace 354 

§  18.  Recapture  after  treaty  of  peace 354 

§  19.  In  what  condition  things  are  to  be  restored 355 

§  20.  Unpaid  military  contributions 355 

§  21.  Breach  of  a  treaty  of  peace 356 

g  22.  Delays  in  executing  it 356 

§  23.  War  for  new  cause  or  for  breach  of  treaty  of  peace 356 

CHAPTER  XXXV. 

RIGHTS  OF   POSTLIMINY  AND   RECAPTURE. 

§  1.     Right  of  postliminy  defined 358 

§  2.     Postliminy  with  regard  to  personal  status  and  rights 358 

g  3.     Postliminy  in  regard  to  things 359 

§  4.     Right  of  postliminy  belongs  exclusively  to  a  state  of  war 359 

§  5.     Postliminy  in  regard  to  allies 359 

§  6.     In  aneutral  territory 360 

§  7.     Upon  movables  on  land 360 

§  8.     Upon  real  property 361 

§  9.     Upon  tows  andprovinces 361 

§  10.  If  a  state  be  entirely  subjugated 361 

§11.  If  the  subjugated  state  regain  its  own  independence 361 

§  12.  If  it  be  released  by  a  friend  or  ally 362 

\  13.  Case  of  Genoa  in  1814 362 

g  14.  Application  of  postliminy  to  maritime  captures 363 

§  15.  Regulated  in  part  by  treaty  stipulations 363 

§  16.  Rule  of  reciprocity 363 


xxviii  CONTENTS. 

PAGE 

§  17.  Military  and  civil  salvage  363 

§  18.  On  neutral  property  not  subject  to  condemnation 364 

§  19.  Where  restoration  is  not  of  strict  right 364 

§  20.  Where  of  strict  right ! 366 

§  21.  Recapture  by  convoying  ships 365 

§  22.  Military  salvage  not  allowed  without  actual  rescue  from  the  enemy 365 

§  23.  If  original  capture  be  unlawful 365 

§  24.  Recapture  of  ransom-bill 366 

g  25.  A  vessel  recaptured  by  her  master  and  crew 366 

§  26.  Recapture  from  pirates 366 

§  27.  Joint  recapture 366 

CHAPTER  XXXVI. 

THE  OBSERVANCE  AND  INTERPRETATION  OF  TREATIES. 

g  1.    Violation  of  the  faith  of  treaties 368 

g  2.     Conditions  to  make  a  treaty  binding 368 

g  3.     Use  of  an  oath  in  treaties 368 

g  4.     Use  of  asseverations 369 

§  5.    Attempts  of  the  popes  to  annul  the  obligations  of  treaties 369 

g  6.     Guarantees  and  sureties 369 

§  7.     Dissolution  and  termination  of  treaties 369 

§  8.     Effect  of  loss  of  sovereignty,  etc 370 

§  9.     Debts  and  obligations  previously  contracted 370 

g  10.  Kenton  interpretation 370 

g  11.  Wheaton  on  technical  rules 370 

g  12.  Grotius  on  interpretation 371 

g  13.  Vattel's  rules 371 

g  14.  Rutherforth  on  interpretation 372 

g  15.  Paley  on  promises 372 

g  16.  Other  modern  writers 373 

g  17.  Objections  to  arbitrary  rules  and  formulae 373 

g  18.  Importance  of  well-established  principles  of  interpretation 374 


INTERNATIONAL  LAW 


AND 


LAWS    OF    WAR. 


CHAPTEK   I. 

HISTORICAL  SKETCH. 

§  1.  Division  of  the  subject.  In  the  following  sketch  of  the 
history  of  international  law,  we  shall  divide  the  subject  into 
periods  of  unequal  length,  but  usually  marked  by  some  import- 
ant event,  and  having  reference  rather  to  the  progress  of  the 
law  than  the  history  of  nations.  This  plan  seems  preferable  to 
that  adopted  by  Hallam,  of  dividing  it  arbitrarily  into  periods 
of  half  a  century  each.  We  shall  therefore  consider  the  condi- 
tion of  international  jurisprudence :  1st,  Among  the  ancients ; 
2d.  From  the  beginning  of  the  Christian  era  to  the  fall  of  the 
Roman  Empire ;  3d.  From  the  fall  of  the  Eoman  Empire  to 
the  beginning  of  the  reformation;  4th.  From  the  beginning 
of  the  reformation  to  the  peace  of  Westphalia;  5th.  From 
the  peace  of  Westphalia  to  the  peace  of  Utrecht ;  6th.  From 
the  peace  of  Utrecht  to  the  close  of  the  seven  years  war ;  7th. 
From  the  close  of  the  seven  years  war  to  the  beginning  of  the 
French  Revolution ;  8th.  From  the  beginning  of  the  French 
Revolution  to  the  congresses  of  Paris  and  Vienna  in  1814  and 
1815 ;  9th.  From  the  congress  of  Vienna  to  the  treaty  of  Wash- 
3*  c  17 


18  ''^'^^^^ iNi'kkNATlSMAt'^'L^A^  AND  LAWS  OF  WAR. 

ington  in  1842 ;  10th.  From  the  treaty  of  Washington  to  the 
end  of  the  civil  war  in  the  United  States  in  1865. 


FIRST  PEEIOD — INTERNATIONAL   LAW  AMONG  THE  ANCIENTS. 

§  2.  Memational  law  among  the  Jews.  The  history  of  the 
Jews,  as  derived  from  the  Old  Testament  and  the  writings  of 
Josephus,  furnishes  much  information  relating  to  the  rules  by 
which  the  ancient  Hebrews  regulated  their  intercourse  with 
other  nations  in  peace  and  war.  Grotius,  and  other  writers  on 
international  jurisprudence,  have  illustrated  their  own  views  of 
public  law  by  numerous  examples  taken  from  the  history  of  this 
singular  people,  and  Selden's  International  Law  of  the  Jews  is 
a  work  of  great  erudition.  He  very  justly  distinguishes  between 
the  usages  and  practices  which  were  susceptible  of  general 
application,  and  those  limited  rules  of  conduct  which  constitute 
thejics  gentium  of  the  Roman  lawyers.  As  naight  be  expected 
from  an  isolated  and  religious  people,  most  of  the  laws  regulating 
their  international  intercourse  in  peace  and  war  were  of  the 
latter  character.  Nevertheless  the  history  of  the  ancient  Jews 
is  well  worthy  of  careful  study  in  its  connection  with  this  branch 
of  public  law ;  but  it  must  be  remembered  there  is  much  in  the 
Jewish  dispensation,  although  of  divine  revelation,  which  has 
exclusive  reference  to  them  as  a  peculiar  people,  with  a  special 
mission  to  perform,  and  therefore  not  of  general  application. 

§  3.  Among  the  ancient  Greeks  and  Romans.  Nearly  all  our 
knowledge  of  international  law  among  ancient  states  is  derived 
from  their  intercourse  with  the  Jews,  and  with  the  Greeks  and 
Romans,  more  particularly  with  the  latter.  Although  no  pro- 
fessed treatise  on  international  jurisprudence  has  been  left  us  by 
any  classical  writer,  nevertheless  much  information  respecting 
this  branch  of  public  law  among  the  Greeks  and  Romans  has 
been  elicited  from  their  civil  laws  and  military  ordinances,  and 
from  the  history  of  their  numerous  wars, — information  calcu- 
lated to  throw  much  light  upon  the  rules  by  which,  at  different 


CH.  L— HISTORICAL  SKETCH.  19 

periods,  they  regulated   their  intercourse  with   other   nations. 
Most  of  these  rules  were  exclusively  founded  on  religion. 

§  4.  The  Jus  Grentium  of  the  Romans.  What  was  called  the 
law  of  nations  [jus  gentium)  by  the  Eomans,  was  not  any  positive 
system  of  jurisprudence  established  by  the  consent  of  all,  or 
even  the  greater  part,  of  the  nations  of  the  world,  and  applica- 
ble alike  to  themselves  and  others ;  it  was  simply  a  civil  law 
of  their  own,  made  for  the  purpose  of  regulating  their  own 
conduct  toward  others  in  the  hostile  intercourse  of  war.  It  was, 
therefore,  contracted  in  its  nature,  and  somewhat  illiberal  in  the 
character  of  its  provisions. 

SECOND    PERIOD — FROM    THE    CHRISTIAN    ERA  TO   THE   FALL 
OF   THE    ROMAN   EMPIRE. 

§  5.  Introduction  of  Christianity.  The  doctrines  of  the  Chris- 
tian religion,  and  the  universality  of  their  application,  were 
well  calculated  to  give  a  milder  character  and  a  greater  exten- 
sion to  the  principles  of  international  law,  than  they  had 
received  either  under  the  Jewish  dispensation,  or  the  defective 
and  multifarious  system  of  the  Greek  and  Roman  mythology. 
But  its  progress  was  comparatively  slow,  and  the  bitter  persecu- 
tions suffered  by  the  early  Christians  naturally  engendered  a 
spirit  of  retaliation.  Moreover,  it  must  be  continually  borne  in 
mind,  while  tracing  the  history  of  international  relations  during 
the  reigns  of  Constantine  and  the  succeeding  Christian  emperors, 
that  the  contests  which  they  carried  on  with  barbarous  states 
were  not  of  a  character  to  develop  the  refinements  of  a  com- 
mercia  helli,  or  even  to  cause  the  observance  of  the  acknow- 
ledged usages  of  war,  or  the  previously  established  practices  of 
international  intercourse  in  peace. 

§  6.  Effects  of  the  Fall  of  the  Roman  Empire.  It  is  not 
within  the  object  of  this  chapter  to  investigate  or  describe  the 
causes  which  finally  overthrew  the  mighty  fabric  which  valor 
and  policy  had  founded  on  the  seven  hills  of  Rome,  nor  to 


20  INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

trace  the  history  of  those  barbarous  nations  of  the  north,  who, 
by  their  martial  energy,  and  irresistible  numbers  and  force, 
imposed  their  yoke  upon  the  ancient  possessors  of  that  vast 
empire,  and  permanently  settled  themselves  in  its  fairest  pro- 
vinces. The  decline  of  taste  and  knowledge  for  several  preced- 
ing ages,  and  the  general  corruption  of  political  partizans  and 
office-holders,  had  prepared  the  way  for  this  revolution,  and  the 
establishment  of  the  barbarian  nations  on  the  ruins  of  the 
Roman  Empire  in  the  west  was  accompanied,  or  immediately 
followed,  by  an  almost  universal  loss  of  that  learning  which 
had  been  accumulated  in  the  Greek  and  Latin  languages. 
What  of  classical  learning  is  still  preserved  to  us  are  the  mere 
fragments  of  those  magnificent  intellectual  temples  which  indus- 
trious antiquaries  have  dug  up  from  the  vast  ruins  of  ancient 
greatness.  These  fragments,  however,  are  sufficient  to  show  the 
grandeur  of  the  original  structure,  and  the  beauty  of  its 
architecture ;  and  the  value  of  what  remains  only  increases  our 
regret  for  what  is  irrecoverably  lost. 

THIRD    PERIOD — FROM   THE    FALL    OF    THE    ROMAN    EMPIRE 
TO   THE   BEGINNING  OF   THE   REFORMATION. 

§  7.  International  Law  during  the  dark  ages.  After  the  fall 
of  the  Roman  Empire  many  cities  still  preserved  their  munici- 
pal constitutions,  and  the  jtis  gentium^  in  connection  with  the 
jus  civile,  into  which  many  of  its  principles  had  become  incor- 
porated, continued  to  be  practiced,  to  a  limited  extent,  both  in 
Italy  and  the  Provinces.  Some  have  attempted  to  trace  its 
influence  upon  the  institutions  and  history  of  the  diiferent 
European  nations,  even  through  the  darkest  ages  of  human 
learning ;  it  must,  however,  be  admitted  that  this  influence  was 
not  very  marked  in  any  case,  and  was  by  no  means  general. 

§  8.  Its  origin  in  Modem  Europe.  The  origin  of  the  law  of 
nations,  in  modern  Europe,  has  been  traced  to  two  principal 
sources — the  canon    law,  and  the  Roman  civil  law.      It  was 


CH.  L— HISTORICAL  SKETCH,  21 

founded,  says  Wheaton,  mainly  upon  the  following  circum- 
stances: "First,  the  union  of  the  Latin  church  under  one 
spiritual  head,  whose  authority  was  often  invoked  as  the 
supreme  arbiter  between  sovereigns  and  between  nations. 
Under  the  auspices  of  Pope  Gregory  IX.,  the  canon  law  was 
reduced  into  a  code,  which  served  as  a  rule  to-  guide  the 
decisions  of  the  church  in  public  as  well  as  private  contro- 
versies. Second,  the  revival  of  the  study  of  the  Roman  law, 
and  the  adoption  of  this  system  of  jurisprudence  by  nearly  all 
the  nations  of  Christendom,  either  as  the  basis  of  their  muni- 
cipal code,  or  as  subsidiary  to  the  local  legislation  of  each 
country.^' 

§  9.  Effects  of  Papal  Supremacy.  On  the  formation  and  con- 
solidation of  the  Christian  government  in  modern  times,  by 
Charlemagne,  the  human  mind  began  to  recover  from  its  torpor, 
and  art,  science,  and  learning,  sprang  up  out  of  the  ruins  of  the 
ancient  world.  The  church  had  constituted  a  kind  of  bridge, 
spanning  the  chaotic  gulf  which  separated  declining  antiquity 
from  modern  civilization.  The  effects  which  this  change  pro- 
duced upon  international  relations,  and  public  law  in  general, 
may  be  traced  in  the  lives  of  such  rulers  as  Charlemagne,  the 
pious  King  Alfred,  King  Stephen  of  Hungary,  Rodolph  of 
Hapsburg,  and  St.  Louis  of  France. 

FOURTH   PERIOD — FROM    THE   BEGINNING  OF    THE    REFORMA- 
TION TO  THE   PEACE  OF  WESTPHALIA. 

§  10.  Effects  of  the  Reformation.  The  reformation  began  to 
produce  its  effects  upon  the  minds  of  men  some  time  prior  to 
the  advent  of  Luther.  Its  effects  were  by  no  means  confined  to 
articles  of  religious  faith.  A  greater  theological  liberty  was  its 
immediate  object,  but  this  was  intimately  allied  with  political 
freedom ;  and  these  two  necessarily  caused  a  great  change  in  the 
law  of  nations.  The  different  states  of  Europe  were  ranged 
under  different  standards,  and  each  party  was  united  by  a  kind 


22  INTERNATIONAL  LAW  AND  LAWS  OF  WAB. 

of  common  cause.  Moreover,  the  separate  members  of  each  of 
the  contending  masses  were  bound  together  by  principle  or 
interest,  rather  than  by  any  recognized  paramount  authority,  for 
even  the  catholic  states  soon  ceased  to  render  full  obedience  to 
the  papal  supremacy  in  matters  purely  temporal.  This  neces- 
sarily led  to  the  independence  of  sovereign  states,  the  true  basis 
of  international  jurisprudence.  The  impulse  which  had  been 
given  to  this  subject  by  the  canon  law  was  gradually  dying 
away,  and  the  infant  science  was  likely  to  be  smothered  and  lost 
by  papal  dictation  and  tyranny,  when  the  more  liberal  notions 
engendered  by  the  reformation  rescued  it  from  destruction,  and 
placed  it  upon  a  more  sure  and  firm  foundation.  Its  progress 
was  thenceforth  both  certain  and  rapid. 

§  11.  Other  causes  of  its  advancement.  Mr.  Ward  in  his 
"  Enquiry  into  the  foundation  and  history  of  the  law  of  nations 
in  Europe,  from  the  time  of  the  Greeks  and  Romans  to  the  age 
of  Grotius,"  has  pointed  out  and  discussed  the  influence  of 
Christianity,  and  of  the  ecclesiastical  establishments,  in  laying 
the  foundation  and  developing  the  principles  of  this  branch  of 
jurisprudence.  He  has  also  called  attention  to  the  obstacles 
placed  in  the  way  of  its  progress  by  religious  intolerance,  and 
the  absurd  and  dangerous  pretensions  of  the  Popes  to  decide 
and  determine,  not  only  international  disputes,  but  all  questions 
relating  to  temporal  matters  connected  with  the  government  of 
independent  states,  and  the  effect  of  the  reformation  in  estab- 
lishing more  liberal  principles.  Nor  has  he  failed  to  notice  the 
influence  of  the  Roman  law,  of  the  feudal  system,  of  chivalry, 
of  treaties  and  conventions,  and  last,  though  not  least,  of  those 
twin  giants  of  modern  civilization — commerce  and  trade — and 
the  maritime  and  commercial  laws  resulting  from  the  increased 
intercourse  between  the  people  of  different  cities  and  countries. 

§  12.  The  Rhodian  Laws,  etc.  The  Rhodians  were  probably 
among  the  first  to  adopt  a  regular  system  of  laws  and  regula- 
tions relating  to  maritime  trade.  This  collection  of  maritime 
usages  is  known  by  the  names  of  Rhodian  Laws,  and  Maritime 


CH.  L— HISTORICAL  SKETCH.  23 

Law  of  the  Rhodians.  The  collection  known  as  the  Rooles  or 
Jugemens  d'Oleron,  was  prepared  under  the  direction  of  Queen 
Eleanor,  and  named  from  her  favorite  island  of  Oldron.  Next 
we  have  the  Leges  WisbK£n8e8,  the  Lois  de  Westcapelle,  the  Cou~ 
tumes  de  Amsterdam,  etc.,  relating  to  maritime  laws  and  usages 
in  northern  Europe. 

§  13.  The  Consolato  del  Mare,  etc.  The  Consolato  del  Mare  is 
one  of  the  most  curious  and  venerable  monuments  of  early- 
maritime  jurisprudence.  The  first  edition  which  can  now  be 
traced  was  published  at  Barcelona  in  1494 ;  but  some  refer  it  to 
a  much  earlier  date,  and  suppose  it  to  contain  the  maritime 
usages  of  the  Greek  emperors,  and  of  the  states  and  cities  bor- 
dering on  the  Mediterranean  and  other  waters.  The  date  of  the 
first  publication  of  the  Guidon  de  la  Mer  is  not  known,  but  it 
was  commented  on  in  Les  Us  et  Coutumes  de  la  Mer,  published 
in  1647.  From  the  Ordonnance  de  la  Marine  of  Louis  XIV., 
published  in  1681,  we  date  the  modern  system  of  maritime  and 
commercial  law. 

§  14.  Writers  prior  to  Grotius.  The  most  noted  writers,  prior 
to  Grotius,  on  matters  connected  with  international  law,  were 
Machiavelli,  Victoria,  Soto,  Suarez,  Ayala,  Bolanos,  Bodinus, 
Gentilis,  Peckius,  Straccha  and  Sauterna. 

§  15.  Writings  of  Grotius.  Hugo  Grotius  is  justly  regajrded 
as  the  founder  of  this  branch  of  jurisprudence.  He  was  born 
in  Holland  in  1583,  and  died  in  1645.  His  great  work,  deJure 
Belli  ac  Padis,  was  published  at  Paris  in  1625.  Grotius  wrote 
during  the  "  thirty  years  war," — ^that  fierce  struggle  for  religious 
liberty  which  was  terminated  a  short  time  after  his  death  by  the 
peace  of  Westphalia,  based  on  the  principles  which  he  had  so 
ably  and  earnestly  advocated. 

FIFTH   PERIOD — FROM   THE   PEACE   OF   WESTPHALIA  TO  THAT 
OF   UTRECHT,    1648-1713. 

§  16.  Political  Events  of  this  period.  Although  the  peace  of 
Westphalia  terminated  that  memorable   struggle  in  Germany 


24  INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

against  the  preponderance  of  the  house  of  Austria,  war  con- 
tinued to  rage  in  other  parts  of  Europe  until  the  treaty  of 
Utrecht  in  1713. 

§  17.  Questions  agitated.  Of  the  questions  particularly  dis- 
cussed during  this  period  we  may  mention  those  relating  to  the 
independence  of  states,  the  liberty  of  the  seas,  the  rights  of 
conquest  and  pre-emption,  the  theory  of  maritime  prize,  the  law 
of  sieges  and  blockades,  the  belligerent  right  of  visitation 
and  search,  and  the  treatment  due  to  prisoners  of  war.  In 
many  of  these  subjects  a  considerable  advance  was  made  from 
the  restricted  rules  of  i\iQJus  gentium  of  the  Romans,  and  even 
from  the  more  liberal  principles  established  by  Grotius ;  but  in 
others,  the  progress  of  this  branch  of  jurisprudence  scarcely 
kept  pace  with  the  increasing  civilization  of  nations. 

§  18.  Writers  following  Grrotius.  The  principal  writers  on 
international  law,  immediately  following  Grotius,  were  Selden, 
Hobbes,  Puffendorf,  Spinoza,  Zouch,  Loccenius,  Molloy,  Jenkins, 
Cumberland,  Wicquefort,  Rachel,  Leibnitz,  Stypmanus,  Kuricke 
and  Roccus. 

SIXTH   PERIOD — FEOM  THE   PEACE   OF  UTRECHT  TO  THE   END 
OF   THE   SEVEN   YEARS   W^AR,    1713-1763. 

§  19.  Political  Events  of  the  period.  The  peace  of  Utrecht 
was  followed  by  the  maritime  war  between  England  and  Spain ; 
by  the  war  of  the  Austrian  succession  ;  and  lastly  by  the  "seven 
years  war,''  which  served  to  develop  the  military  resources  of 
Prussia,  and  to  display  the  brilliant  genius  of  Frederick  the 
Great. 

§  20.  Questions  agitated.  During  this  period  arose  the  cele- 
brated question  of  the  Silesian  loan,  which  led  to  important 
discussions.  Great  Britain  attempted  to  establish  the  doctrine 
denominated  the  "Rule  of  1756.''  Many  questions  also  gave 
rise  to  discussion  in  regard  to  the  rights  and  privileges  of  public 
ministers,  and  the  rules  of  diplomatic  etiquette. 

§  21.  Writings  of  publicists.      This  period   was  prolific  in 


CH.  L— HISTORICAL  SKETCH.  25 

writers  on  questions  of  international  law,  among  the  most  dis- 
tinguished of  which  we  may  mention  the  names  of  Bynkershoek, 
Wolfius,  Vattel,  Montesquieu,  Heineccius,  Barbeyrac,  Mably, 
Emerigon,  Valin,  Burlamaqui,  Pothier,  Casaregis,  Real,  Ruth- 
erforth,  Tindall,  Hubner,  Abreu  and  Dumont. 

SEVENTH   PERIOD — FROM    THE    SEVEN   YEARS    WAR    TO    THE 
FRENCH   REVOLUTION,    1763-1789. 

§  22.  Political  Events.  This  period  is  marked  by  the  partition 
of  Poland,  the  war  of  Bavarian  succession,  the  mediation  of 
France  between  Joseph  II.  and  the  United  Provinces,  the  triple 
alliance  between  Great  Britain,  Prussia  and  Holland  in  1788, 
and  the  American  Revolution  which  secured  the  independence 
of  the  United  States  and  led  to  the  wars  of  the  French  Revolu- 
tion. 

§  23.  Questions  agitated.  The  more  important  questions  of 
international  law  agitated  during  this  period  were  those  con- 
nected with  the  independence  of  states,  the  right  of  intervention 
and  mediation,  and  the  right  of  revolution.  Among  those 
relating  to  maritime  jurisprudence,  we  may  mention  the  rule  of 
free  ships,  free  goods,  which  was  recognized  and  attempted  to  be 
established  by  the  French  ordinance  of  1778;  the  rights  of 
neutral  commerce,  as  declared  by  the  armed  neutrality  of  1780; 
and  the  abolition  of  privateering,  as  agreed  upon  by  Prussia  and 
the  United  States  in  the  treaty  negotiated  by  Franklin  in  1785. 

§  24.  Writings  of  publicists.  The  most  distinguished  writers 
of  this  period  on  international  law,  were  the  two  Mosers,  Lam- 
predi,  Galiani,  G.  F.  Martens,  Mirabeau,  and  Bentham.  Among 
those  of  less  note  we  may  mention  Neyron,  Gunther,  Van 
Romer,  Wench,  and  Schmass. 

EIGHTH    PERIOD — FROM    THE     BEGINNING    OF    THE    FRENCH 
REVOLUTION   TO   THE  CONGRESS   OF    VIENNA,  1789-1815. 

§  25.  Political  Events.  The  conflict  of  opinions  and  interests 
growing  out  of  the  events  of  the  French  revolution  engendered 

3  D 


26  INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

a  war  which  soon  involved  nearly  all  the  states  of  Europe  and 
America.  The  whole  period  is  marked  by  encroachments  on 
the  true  principles  of  international  law,  and  a  total  disregard 
of  the  rights  of  sovereign  and  independent  states. 

§  26.  Questions  agitated.  Among  the  questions  more  par- 
ticularly discussed  during  this  period,  we  may  mention  the 
right  of  armed  intervention,  the  laws  of  war  in  regard  to  mili- 
tary occupation  and  conquest,  to  sieges  and  blockades,  to  prize 
and  booty,  and  to  the  treatment  and  exchange  of  prisoners  of 
war.  The  law  of  contraband,  the  rights  of  colonial  and  neutral 
trade,  and  the  rights  of  visit,  search,  impressment,  and  pre-emp- 
tion, were  also  matters  of  warm  dispute  between  the  great 
maritime  powers. 

§  27.  Writings  of  publicists:  Although  this  was  eminently  a 
period  of  action  rather  than  of  calm  discussion  and  investiga- 
tion, it  produced  several  able  text-writers  on  international  law, 
among  which  we  may  mention  Azuni,  Martens,  Kant,  Koch, 
Savigny,  Ward,  Mackintosh,  Dou,  Flassan,  E-ayneval,  Jouffroy, 
Jacobson,  Merlin,  and  Marin. 

§  28.  Judicial  Decisions.  Much  importance  was  attached 
during  this  period  to  the  opinions  and  decisions  of  judicial 
tribunals  on  questions  of  international  law,  many  of  which 
were  characterized  by  profound  learning  and  great  legal  ability. 
In  maritime  law  none  have  been  more  distinguished  for  learn- 
ing, sagacity,  and  comprehensive  views  than  Sir  William  Scott, 
afterward  Lord  Stowell.  The  opinions  of  this  great  jurist  must, 
however,  be  consulted  with  due  caution,  on  account  of  his  lean- 
ing toward  British  precedents  and  British  pretensions. 

NINTH    PERIOD — FROM    THE    CONGRESS   OF   VIENNA    TO    THE 
TREATY    OF   WASHINGTON,   1815-1842. 

§  29.  Political  Events.  Europe,  exhausted  by  the  great  wars 
of  the  French  revolution  and  empire,  which  were  terminated  in 
1815,  enjoyed  a  long  period  of  general  peace.    The  local  revolu- 


CH.  L— HISTORICAL  SKETCH.  27 

tions  in  Greece,  France,  Belgium,  Poland,  etc.,  and  the  war  of 
1829,  between  Russia  and  the  Porte,  were  too  limited  in  extent, 
and  too  temporary  in  their  character,  to  disturb  the  general 
tranquility.  In  America  the  Spanish  and  Portuguese  provinces, 
during  this  period,  threw  oiF  the  colonial  yoke  and  assumed  the 
position  and  rank  of  sovereign  and  independent  states.  The 
treaty  of  Ghent,  in  1814,  between  the  United  States  and  Great 
Britain,  had  left  unsettled  many  of  the  causes  of  the  war  of 
1812,  which  were  again  likely  to  involve  the  two  countries  in 
serious  difficulties,  but  most  of  these  points  of  dispute  were 
happily  settled  by  the  treaty  of  AYashington  in  1842,  and  a 
general  peace  prevailed  throughout  the  civilized  world. 

§  30.  Questions  agitated.  During  this  period  many  of  the 
questions  of  international  law  which  had  arisen  in  the  previous 
wars  were  elaborately  discussed.  The  attention  of  publicists 
was  also  directed  to  new  ones,  or,  at  least,  old  questions  pre- 
sented under  new  circumstances.  Among  these  we  may  men- 
tion the  rights  and  duties  of  neutrality ;  the  right  of  revolution 
and  intervention ;  the  right  of  visitation  and  search  in  time  of 
peace;  of  exclusive  territorial  jurisdiction;  and  the  free  naviga- 
tion of  great  rivers,  as  the  Rhine,  the  St.  Lawrence,  etc. 

§  31.  Writings  of  publicists.  Among  the  more  distinguished 
publicists  of  this  period  we  may  mention  the  names  of  Kamptz, 
Kluber,  Hegel,  Wheaton,  Kent,  Story,  Manning,  Lieber,  Bello, 
Pfeiffer,  C.  De  Martens^  Garden,  Pardessus,  Boulay-Paty, 
Hauterive,  De  Cussy,  De  Felice,  Schoel,  etc. 

TENTH   PERIOD — FROM   THE  TREATY   OF  WASHINGTON  TO  THE 
END   OF   THE   AMERICAN   REBELLION,  1842-1865. 

§  32.  Political  Events.  During  this  period  we  have,  in 
Europe,  the  revolution  in  France  and  the  restoration  of  the 
Bonapartes;  abortive  revolutions  in  Germany,  Poland,  Hun- 
gary, and  elsewhere ;  the  Crimean  war,  and  the  war  in  Italy ; 
and  lastly,  the  Schleswig-Holstein  German  war.     In  America 


28  INTERNATIONAL    LAW   AND  LAWS  OF  WAB. 

we  have  the  war  between  the  United  States  and  Mexico,  and 
the  resulting  filibuster  expeditions ^  with  civil  wars  in  Mexico  and 
the  Central  and  South  American  Republics;  and  lastly,  the 
great  rebellion  in  the  United  States,  and  the  invasion  of  Mexico 
by  the  French. 

§  33.  Questions  agitated.  This  period  has  probably  given  rise 
to  more  important  questions  of  international  law  than  any  one 
which  preceded  it.  Among  these  we  may  mention  the  rights  of 
intervention ;  of  military  occupation  and  conquest ;  of  annex- 
ation and  secession ;  of  visit,  search  and  blockade,  and  of  neu- 
tral trade ;  and,  in  fine,  innumerable  points  in  regard  to  inter- 
national, political,  and  personal  rights  and  duties  growing  out 
of  rebellion  and  civil  war. 

§  34.  Writings  of  publicists.  This  period  has  been  prolific 
in  works  on  international  law  and  its  kindred  subjects.  Among 
the  more  distinguished  authors  we  will  mention  Wheaton,  Duer, 
Story,  Reddie,  Wildman,  Westlake,  Phillimore,  Twiss,  Lieber, 
Woolsey,  Hautefeuille,  Ortolan,  Foelix,  Mass^,  Pouget,  Pistoye 
and  Duverdy,  Heffter,  Pando,  Riquelme,  etc. 

§  35.  Judicial  Decisions.  Some  of  the  numerous  and  impor- 
tant questions  of  international  law  which  have  been  agitated 
within  the  last  twenty-five  years  have  been  most  elaborately 
discussed  in  the  decisions  and  opinions  of  eminent  judges. 
None  of  these  have  shown  greater  ability  than  the  late  Chief 
Justice  Marshall,  and  Justice  Story,  of  the  United  States 
Supreme  Court.  The  decisions  of  these  two  eminent  judges 
on  questions  of  international  law,  and  more  particularly  of 
maritime  capture,  rank,  at  least,  next  to  Sir  Wm.  Scott, 
and,  on  some  points,  they  are  now  regarded  as  the  better 
authority. 

§  36.  Diplomatic  Papers,  etc.  More  full  and  complete  discussions 
may  be  found  in  the  diplomatic  correspondence,  parliamentary 
debates  and  periodical  literature.  Many  of  the  state  papers  of 
Webster,  Marcy  and  Seward,  on  these  subjects,  are  admirable, 
and  some  of  the  debates  of  Lyndhurst,  Palmerston,  Russell, 


CH.  L— HISTORICAL  SKETCH.  29 

Bright,  and  Cobden,  throw  much  light  on  the  legal  questions 
discussed.  Many  valuable  articles  on  international  subjects  may 
be  found  in  the  periodical  literature  of  the  day,  and  questions 
arising  under  the  laws  of  war  have  sometimes  been  dis- 
cussed with  marked  ability  in  the  correspondence  of  military 
officers. 

3* 


CHAPTER    II. 

NATURE  AND   SOURCES  OF  INTERNATIONAL  LAW. 

§  1.  Definition  of  International  Law.  International  law,  or 
The  law  of  nations,  may  be  defined  to  be.  The  rules  of  conduct 
regulating  the  intercourse  of  dates. 

Most  writers  have  endeavored  to  frame  their  definition  so  as 
to  embrace  the  sources  of  this  law,  rather  than  to  describe  the 
nature  and  character  of  the  law  itself.  Thus,  Grotius  considers 
the  law  of  nations  as  a  positive  institution,  deriving  its  authority 
from  the  positive  consent  of  all,  or  the  greater  part  of  civilized 
nations,  united  in  a  social  compact  for  this  purpose.  While 
Rutherforth  denies  the  existence  of  any  such  social  union  among 
nations,  and  concludes  that  what  is  called  the  law  of  nations, 
when  applied  to  states,  is  nothing  more  than  what  is  called 
natural  law  when  applied  to  individuals  as  parts  of  these  col- 
lective bodies.  Hobbes  and  Puifendorf  also  consider  the  general 
principles  of  natural  law,  and  the  law  of  nations,  as  one  and  the 
same  thing,  and  the  distinction  between  them  as  merely  verbal, 
while  others  define  this  law  to  consist  only  of  the  usages, 
customs  and  conventions  adopted  and  observed  among  nations. 
The  definition  here  given  avoids  any  reference  to  those  questions 
which  have  been  so  much  discussed  by  publicists,  and  upon 
which  there  is  very  little  prospect  of  a  general  agreement. 

§  2.  General  Divisions.  The  difference  in  the  nature  and 
origin  of  the  rules  which  ought  to  regulate  the  conduct  of 
nations  in  their  mutual  intercourse,  has  led  text-writers  to  divide 
international  law  into  different  branches.  The  most  common 
of  these  general  divisions  is,  into  the  natural  law  of  nations,  and 

30 


CH.  IL—ITS  NATURE  AND  SOURCES.  31 

the  positive  law  of  nations.  The  first  of  these  branches  has 
been  sub-divided  into  the  divine  law,  and  the  application  of  the 
law  of  God  to  states.  The  second  branch  has  also  been  sub- 
divided into  the  conventional  law  of  nations  and  the  customary- 
law  of  nations.  These  divisions  are  somewhat  arbitrary,  and  we 
shall  follow  them  only  so  far  as  may  be  necessary  or  convenient 
in  pointing  out  the  sources  of  international  jurisprudence,  and 
in  discussing  the  nature  and  character  of  the  rules  which  con- 
stitute that  code. 

§  3.  Divine  or  Natural  Law.  Ethical  writers  hold  that  there 
is  a  dictate  of  right  reason  or  law  of  conscience,  enjoining  some 
actions  and  prohibiting  others,  according  to  their  moral  obliga- 
tion or  moral  deformity.  And  it  is  further  said  that  the  revealed 
will  of  God  points  out  and  enforces  these  principles. 

§  4.  Its  application  to  States.  Some  contend  that  international 
law  is  simply  the  law  of  nature  applied  to  states,  while  others 
contend  that  the  divine  laws,  both  natural  and  revealed,  apply 
only  to  individuals,  and  that  they  must  be  modified  in  their 
application  to  the  conduct  of  independent  nations.  It  is  there- 
fore claimed  that  international  law  is  a  science  distinct  from 
natural  law. 

§  5.  The  Positive  Law  of  Nations.  It  is  certainly  true  that 
states  are  capable  of  contracting  obligations  toward  others, 
either  by  their  general  acquiescence  in  certain  positive  rules  for 
the  regulation  of  their  mutual  intercourse,  by  that  tacit  conven- 
tion implied  from  usage  and  practice,  or  by  direct  and  positive 
compact  or  agreement.  These,  where  not  contrary  to  the  law  of 
nature,  are  binding  rules  of  conduct,  and  must  be  inquired  into 
before  we  can  determine  what  is  the  rule  to  be  observed  by  such 
states  in  any  particular  case.  Hence  arises  that  important  branch 
called  the  positive  law  of  nations,  which  has  been  sub-divided  into 
the  conventional  law  of  nations  and  the  eustomary  laws  of  nations. 

§  6.  Relations  between  the  Natural  and  Positive  Law.  It  is  said 
that  the  rights  and  duties  of  states  which  require  an  international 
law  for  their  regulation  and  enforcement,  result  from  the  law  of 


32  INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

nature,  or  the  will  of  God,  and  that  the  rules  of  this  law, 
whether  resulting  from  compact,  custom  or  usage,  are  the  mere 
outward  expressions  of  the  consent  of  nations  to  things  which 
are  naturally,  that  is,  by  the  law  of  God,  binding  upon  them. 

§  7.  Conventional  Law.  The  Conventional  Law  of  Nations 
results  from  the  stipulations  of  treaties,  and  consists  of  the  rules 
of  conduct  agreed  upon  by  the  contracting  parties.  As  such 
agreement  binds  only  the  contracting  parties,  it  is  evident  that 
the  conventional  law  of  nations  is  not  an  universal,  but  a  par- 
ticular law.  Nevertheless,  as  these  agreements  are  not  always 
limited  to  the  intercourse  of  the  contracting  parties  with  each 
other,  but  extend  to  their  intercourse  with  other  nations,  and 
are,  moreover,  frequently  intended  to  express  opinions  or  to 
establish  rules  of  action,  with  respect  to  particular  points  or 
questions  in  the  law  of  nations,  they  belong  to  history,  and  have 
an  important  influence  in  regulating  the  general  intercourse 
of  states,  and  in  modifying  and  determining  the  principles  of 
international  law.  Hence  the  stipulations  of  treaties  between 
highly  civilized  nations  form  an  important  branch  of  the  general 
law  of  nations. 

§  8.  Customary  Law.  The  Customary  Law  of  Nations  em- 
bodies, says  Mr.  Justice  Story,  "  those  usages  which  the  con- 
tinued habit  of  nations  has  sanctioned  for  their  mutual  interest 
and  convenience."  As  this  law  is  founded  on  the  tacit  or 
implied  consent  of  nations  as  deduced  from  their  intercourse 
with  each  other,  in  order  to  determine  whether  any  particular- 
act  is  sanctioned  or  forbidden  by  this  law,  we  must  inquire 
whether  it  has  been  approved  or  disapproved  by  civilized 
nations  generally,  or  at  least  by  the  particular  nations  which 
are  aifected  in  any  way  by  the  act. 

§  9.  Customs  how  far  binding.  Customs  which  are  lawful 
and  innocent  are  binding  upon  the  states  which  have  adopted 
them ;  but  those  which  are  unjust  and  illegal,  and  in  violation 
of  natural  and  divine  law,  have  no  binding  force. 

§  10.  Division  by  Vattel.     Wolfius,  and  his  abridger,  Yattel, 


CH.  IL—ITS  NATURE  AND  SOURCES.  33 

distinguish  between  particular  and  general  usages,  and  confine 
the  term  customary  to  the  former,  and  introduce  a  third  division 
of  the  positive  law  of  nations,  which  they  call  the  voluntary  law 
of  nations  to  designate  that  universal  voluntary  law  of  usage, 
or  of  custom,  which  has  been  established  and  sanctioned  by  the 
frequency  of  its  recognition  and  the  numbers  who  have  approved 
it.  From  this  sub-division  they  would  exclude  all  usages 
which  are  confined  to  particular  periods  or  to  particular  nations 
and  countries. 

§  11.  Objections  to  this.  This  division  of  the  positive  law  of 
nations,  by  Yattel,  into  voluntary,  conventional,  and  customary 
laws,  has  been  objected  to  by  some  as  improper,  and  calculated 
to  confuse  rather  than  to  elucidate  the  subject.  It  was  adopted 
by  Wheaton  in  the  first  edition  of  his  Elements  of  International 
Law,  but  afterward  rejected  by  him  on  the  ground  that  the  term 
"  voluntary  law  of  nations,^^  more  properly  designated  the  gmus, 
including  all  the  rules  introduced  by  positive  consent,  for  the 
resrulation  of  international  conduct,  and  should  be  divided  into 
two  species, — conventional  law  and  customary  law, — ^the  former 
being  introduced  by  treaty,  and  the  latter  by  usage ;  the  former 
by  express  consent,  and  the  latter  by  tacit  consent  between 
nations.  Notwithstanding  this  objection,  we  think  the  divi- 
sions of  Yattel  not  entirely  without  foundation,  and,  at  least, 
as  worthy  of  consideration.  His  terms,  however,  are  not  well 
chosen. 

§  12.  Other  Divisions.  Other  publicists  have  made  still 
further  and  different  divisions  and  sub-divisions  of  this  branch 
of  international  jurisprudence.  Of  these  we  shall  mention  but 
one,  which  not  only  seems  to  be  well  founded,  but  to  point  out 
distinctions  which  it  is  important  to  observe.  The  custom  and 
usage  of  nations  have  established  certain  rights  which  are  called 
absolute,  or  rights  stricti  juris,  while  at  the  same  time,  increas- 
ing civilization  has  in  other  respects,  mitigated  the  severity  of 
these  rights  by  the  u^age  of  comity, — comitas  gentium,  by  which 
is  understood,  the  rule  of  convenience,  as  distinguished  from 

E 


34  INTERNATIONAL   LAW  AND  LAWS  OF  WAB. 

abstract  right.  Again,  with  regard  to  the  intercourse  of  indi- 
vidual  members  of  different  states,  this  comity  has  produced 
what  is  termed  irdernaiional  law  private — jits  gentium  privatum, — 
as  distinguished  from  international  law  public ;  that  is  to  say, 
rules  having  reference,  not  to  the  relations  of  states  among  them- 
selves, but  the  relations  of  individuals  of  one  state  to  the  laws 
and  institutions,  of  other  states. 

§  13.  Law  not  universal  or  immutable.  It  is  admitted  by  all, 
that  there  is  no  universal  or  immutable  law  of  nations,  binding 
upon  the  whole  human  race,  which  all  mankind  in  all  ages  and 
countries  have  recognized  and  obeyed.  Nevertheless,  there  are 
certain  principles  of  action,  a  certain  distinction  between  right 
and  wrong,  between  justice  and  injustice, — a  certain  divine  or 
natural  law, — or  rule  of  right  reason,  which,  in  the  words  of 
Cicero,  "  is  congenial  to  the  feelings  of  nature,  diffused  among 
all  men,  uniform,  eternal,  commanding  us  to  our  duty,  and  pro- 
hibiting every  violation  of  it, — one  eternal  and  immortal  law, 
which  can  neither  be  repealed  nor  derogated  from,  addressing 
itself  to  all  nations  and  all  ages,  deriving  its  authority  from  the 
common  sovereign  of  the  universe,  seeking  no  other  law-giver 
and  interpreter,  carrying  home  its  sanctions  to  every  breast,  by 
the  inevitable  punishment  he  inflicts  on  its  transgressors.'^ 

§  14.  Its  rules  obligatory.  It  must  not  be  inferred,  that  be- 
cause there  is  no  immutable  law  of  nations  absolutely  binding 
upon  all  mankind,  that  the  rules  of  national  intercourse  estab- 
lished by  general  consent  and  sanctioned  by  reason,  are  not  obli- 
gatory upon  states  and  may  be  violated  with  impunity.  These 
rules  cannot,  perhaps,  with  strict  propriety  be  called  laws,  in  the 
sense  of  commands  proceeding  from  an  authority  competent  in 
all  cases  to  enforce  obedience  or  punish  violations.  But,  like 
the  laws  of  honor,  they  are  rules  of  conduct  imposed  by  public 
opinion,  and  are  enforced  by  appropriate  sanctions.  They  are, 
therefore,  by  their  analogy  to  positive  commands,  properly 
termed  laws ;  and  they  are  enforced,  not  only  by  moral  sanc- 
tions, but  by  the  fear  of  provoking  general  hostility,  and  incur- 


I 


CH.  TI.—ITS  NATURE  AND  SOURCES.  35 

ring  its  evils,  in  case  of  violating  maxims  which  are  generally- 
received  and  respected  among  nations. 

§  15.  Violations  how  punished.  Moreover,  the  law  of  nations 
provides,  in  a  measure,  for  the  enforcement  of  its  rules,  and  the 
punishment  of  a  violation  of  its  maxims.  Certain  offenses 
against  this  law,  as  piracy  for  example,  wheresoever  and  by 
whomsoever  committed,  are  within  the  cognizance  of  the  judi- 
cial power  of  every  state ;  for,  being .  regarded  as  the  common 
enemies  of  all  mankind,  any  one  may  lawfully  capture  pirates 
upon  the  high  seas,  and  the  tribunal  of  any  state,  within  whose 
territorial  jurisdiction  they  may  be  brought,  can  try  and  punish 
them  for  their  crimes.  Again,  international  law  determines  the 
mode,  means  and  extent  of  the  punishment  which  one  state  may 
impose  upon  the  offending  individuals  of  another  state,  in  order 
to  repair  the  wrongs  it  has  suffered. 

§  16.  Can  a  sovereign  state  be  punished?  Some  publicists 
have  argued  that,  as  all  sovereign  states  are  considered  equal  in 
international  law,  and  as  they  can  never  be  subjects  of  criminal 
law,  they  cannot  be  punished  for  offenses  committed.  This  is 
probably  true  in  the  strict  technical  sense  of  the  term  punish. 
Nevertheless,  as  the  injured  state  may,  in  order  to  obtain  indem- 
nity for  the  past  and  security  for  the  future,  destroy  the  property 
of  the  offending  state,  and  kill  its  citizens,  it  does,  to  all  intents 
and  purposes,  inflict  punishment. 

§  17.  General  sources  of  International  Law.  In  the  present 
imperfect  state  of  international  law,  which  recognizes  the 
obligatory  force  of  no  written  code,  and  acknowledges  no  per- 
manent judicial  expositor  of  its  principles,  we  must  necessarily 
resort  to  the  precedents  collected  from  history,  the  opinions  of 
jurisconsults,  and  the  decisions  of  tribunals,  in  order  to  ascer- 
tain what  these  principles  are,  and  to  determine  what  are  the 
proper  rules  for  their  application.  Some  of  these  principles  and' 
rules  have  been  settled  for  ages,  and  have  the  force  of  positive 
laws  which  no  one  will  now  venture  to  dispute  or  call  in  ques- 
tion ;  while  others  are  admitted  only  by  particular  states,  and 


86  INTERNATIONAL   LAW  AND  LAWS  OF   WAB. 

cannot  be  regarded  as  binding  upon  any  one  which  has  not 
adopted  them.  The  sources  of  international  law  are  therefore  as 
various  as  the  subjects  to  which  its  rules  are  applied ;  and,  in 
deducing  these  rules,  we  should  distinguish  between  those  which 
are  applicable  only  to  particular  states,  and  those  which  are 
obligatory  upon  all. 

§  18.  The  Divine  Law.  The  first  source  from  which  are 
deduced  the  rules  of  conduct  which  ought  to  be  observed 
between  nations,  is  the  divine  law,  or  principle  of  justice,  which 
has  been  defined  "  a  constant  and  perpetual  disposition  to  render 
every  man  his  due.''  The  peculiar  nature  of  the  society  existing 
among  independent  states,  renders  it  more  difficult  to  apply  this 
principle  to  them  than  to  individual  members  of  the  same  state; 
and  there  is,  therefore,  less  uniformity  of  opinion  with  respect 
to  the  rules  of  international  law  properly  deducible  from  it,  than 
with  respect  to  the  rules  of  moral  law  governing  the  intercourse 
of  individual  men. 

§  19.  Rather  a  test.  Grotius  lays  down  the  broad  principle 
that  the  positive  law  of  nations  may  add  to,  but  cannot  subtract 
from  the  law  of  nature.  Others  say  that  human  laws  are  only 
declaratory,  but  have  no  power  over  the  substance  of  original 
justice.  In  this  view,  the  divine  law,  or  principle  of  justice, 
would  be  regarded  as  the  test  rather  than  the  source  of  the  rules 
of  positive  international  law. 

§  20.  History  as  a  Source.  The  history  of  transactions  relating 
to  the  intercourse  of  states,  both  in  peace  and  war,  is  one  of  the 
most  fruitful  sources  of  international  law.  What  is  called  the 
voluntary,  or  positive  law  of  nations,  is  mainly  derived  from 
usage  and  custom,  and  to  determine  these  we  must  have  recourse 
to  the  history  of  what  has  passed  from  time  to  time  among  the 
several  nations  of  the  world ;  not  that  history  will  afford  us  the 
record  of  any  constant  and  uninterrupted  practice,  but  because 
we  shall  there  find  what  has  been  generally  approved  and  what 
has  been  generally  condemned  in  the  variable  and  contradictory 
practice  of  nations ;  "  for,"  in  the  words  of  Grotius,  "  such  a 


J 


CH.  IL—ITS  NATURE  AND  SOURCES.  37 

universal  approbation  must  arise  from  some  universal  principle, 
and  this  universal  principle  can  be  nothing  else  but  the  common 
sense  or  reason  of  mankind.'^ 

§  21.  The  Roman  Civil  Law.  It  will  generally  be  found  that 
the  deficiencies  of  precedent,  usage,  and  express  international 
authority,  may  be  supplied  from  the  rich  treasury  of  the  Roman 
Civil  Law.  Indeed,  the  greater  number  of  controversies  between 
states  would  find  a  just  solution  in  this  comprehensive  system 
of  practical  equity,  which  furnishes  principles  of  universal 
jurisprudence,  applicable  alike  to  individuals  and  to  states. 

§  22.  Decisions  of  Prize  Courts.  According  to  the  present 
law  and  practice  of  nations,  the  seat  of  judicial  authority  of 
prize  courts  is  located  in  the  belligerent  country,  and  they  are 
dependent,  in  a  measure,  upon  the  laws  and  institutions  of  the 
particular  states  by  which  they  are  established.  In  this  respect 
they  are  ex  parte  tribunals.  But  the  subjects  of  their  adjudica- 
tion, are,  without  distinction,  matters  relating  to  the  citizens 
and  property  of  their  own  states,  of  neutrals,  and  of  the  belli- 
gerent country;  and  the  law  itself,  by  which  their  decisions 
should  be  governed,  has  no  locality,  and  it  is  the  duty  of  such 
a  court  to  determine  questions  which  come  before  it  exactly  as 
it  would  determine  them  by  sitting  in  the  neutral  or  belligerent 
country,  the  rights  of  whose  citizens  are  to  be  adjudicated 
upon.  In  theory,  therefore,  such  courts  are  regarded  as  inter- 
national tribunals. 

§  23.  Judgments  of  mixed  Tribunals.  Greater  weight  is  justly 
attributable  to  the  judgments  of  mixed  tribunals,  appointed  by 
the  joint  consent  of  the  several  states  between  which  they  are 
to  decide,  than  to  those  of  admiralty  courts  established  by,  and 
dependent,  in  some  measure,  on  the  instructions  of  a  single 
state;  provided  that  the  judges  and  umpires  of  these  mixed 
tribunals  possess  the  same  character,  ability,  and  learning,  as 
the  judges  of  admiralty.  But,  unfortunately,  this  has  not 
generally  been  the  case ;  and  the  decisions  of  these  boards  of 
arbitration  have  too  often  been  mere  compromises  of  differences, 

4 


38  INTERNATIONAL    LAW  AND  LAWS  OF  WAR. 

rather  than  the  elucidation  of  principles  of  international  law, 
founded  upon  the  true  basis  of  international  justice  and  sup- 
ported by  right  reason.  Nevertheless,  these  adjudications 
furnish  a  fruitful  source  of  international  law,  and  may  always 
be  consulted  with  profit  and  instruction. 

§  24.  Ordinances  and  Commercial  Laws.  The  ordinances  and 
commercial  laws  of  particular  states,  and  the  rules  prescribed 
for  the  conduct  of  their  commissioned  cruisers  and  prize  tribu- 
nals, may  also  be  referred  to  for  illustrations  of  the  voluntary 
law  of  nations,  as  understood  and  practiced  by  such  states. 
They,  however,  should  be  investigated  with  caution,  and  are 
received  only  as  particular  admissions  of  general  principles. 
Nevertheless,  some  of  the  most  important  modifications  and 
improvements  in  the  modern  law  of  nations  have  thus  originated 
in  the  ordinances  and  commercial  regulations,  the  proclamations 
and  manifestoes  of  particular  states. 

§  25.  Decisions  of  Local  Courts.  The  same  remarks  are  appli- 
cable to  the  decisions  of  local  couiis.  The  adjudications  of  ques- 
tions arising  from  international  relations  by  such  tribunals,  are 
not  obligatory  upon  other  states,  except  so  far  as  they  conform 
to  general  principles  and  established  usages ;  but  as  many  ques- 
tions can  be  decided  only  in  this  way,  we  may  derive  from 
this  source  many  rules  relative  to  the  positive  or  practical  law 
of  nations. 

§  26.  Text-writers.  Another  source,  and  perhaps  the  most 
fruitful  of  all,  is  formed  of  the  works  of  text-writei^s  of  approved 
authority,  showing  the  usage  of  nations,  or  the  general  opinion 
respecting  their  mutual  conduct,  with  the  definitions  and  modi- 
fications introduced  by  general  consent.  As  a  general  rule, 
authors  of  text-books  and  treatises  on  international  law,  have 
risen  above  the  local  interests  and  prejudices  which  too  often 
influence  the  writings  of  diplomatists,  and  even  the  decisions 
of  courts,  and  have  treated  the  subject  in  a  philosophical  spirit 
worthy  of  all  commendation,  and  which  causes  their  opinions  to 
be  referred  to  as  authority  on  all  disputed  questions.     Of  course 


CH.  II.—ITS  NATURE  AND  SOURCES.  39 

we  cannot  expect  to  find  a  complete  uniformity  of  opinions  in 
these  writers,  but  there  is  a  very  general  concurrence  of  views 
on  all  the  great  and  leading  principles  which  they  have  dis- 
cussed. "In  cases  where  the  principal  jurists  agree/^  says 
Kent,  "the  presumption  will  be  very  great  in  favor  of  the 
validity  of  their  maxims;  and  no  civilized  nation,  that  does 
not  arrogantly  set  all  ordinary  law  and  justice  at  defiance,  will 
venture  to  disregard  the  uniform  sense  of  the  established  writers 
of  international  law/' 

§  27.  Reason  of  their  authority.  But  it  is  not  entirely  upon 
their  unanimity  of  opinion  on  great  principles  that  the  authority 
of  text-writers  has  so  great  weight  in  the  settlement  of  contro- 
versies between  states.  As  a  general  rule,  reference  is  made  to 
those  who  wrote  before  the  cause  of  the  controversy  arose,  and 
who  are  therefore  impartial.  Moreover,  it  may  be  that  the 
text-writers  belonging  to  the  very  country  which  is  urging  a 
demand,  have,  in  advance,  pronounced  against  it.  "  If  the 
authority  of  Zouch,"  says  Phillimore,  "  of  Lee,  of  Mansfield, 
and,  above  all,  of  Stowell,  be  against  the  demand  of  England ; 
if  Valin,  Domat,  Pothier,  and  Yattel  be  opposed  to  the  preten- 
sions of  France ;  if  Grotius  and  Bynkershoek  confute  the  claim 
of  Holland ;  Puifendorf  that  of  Sweden ;  if  Heineccius,  Leib- 
nitz and  Wolff  array  themselves  against  Germany;  if  Story, 
Wheaton,  and  Kent  condemn  the  act  of  America,  it  cannot  be 
supposed  (except,  indeed,  in  the  particular  epoch  of  a  revolu- 
tion, when  all  regard  to  law  is  trampled  under  foot,)  that  the 
argumentum  ad  pabnam  would  not  prevail ;  at  all  events,  it  can- 
not be  doubted  that  it  ouglit  to  prevail,  and  should  the  country 
relying  upon  such  authority  be  compelled  to  resort  to  arms,  that 
the  guilt  of  the  war  would  rest  upon  the  antagonist  refusing  to 
be  bound  by  it." 

§  28.  Treaties  and  compacts.  Express  compacts  between  states, 
and  treaties  of  peace,  alliance  and  commerce,  declaring,  modify- 
ing, or  defining  the  rules  which  regulate  their  mutual  inter- 
course, furnish  another  fruitful   source   of  international    law. 


40  INTERNATIONAL    LAW  AND  LAWS  OF   WAR. 

Such  treaties  and  conventions  are  of  binding  force  only  upon 
the  contracting  parties,  and  they  cannot  modify  the  original  and 
pre-existing  law  of  nations  to  the  disadvantage  of  those  states 
which  are  not  direct  parties  to  these  compacts ;  but  where  they 
relax  the  rigor  of  the  primitive  law  in  favor  of  others,  or  fur- 
nish a  more  definite  rule  of  practice  in  matters  which  have  given 
rise  to  conflicting  pretensions,  the  conventional  laws  thus  intro- 
duced are  not  only  obligatory  upon  the  contracting  parties,  but 
constitute  a  rule  to  be  observed  by  them  toward  the  rest  of  the 
world.  And  although  one  or  two  treaties,  varying  from  the 
general  usage  and  custom  of  nations,  cannot  alter  the  pre-exist- 
ing international  law,  yet  an  almost  perpetual  succession  of 
treaties,  establishing  a  perpetual  rule,  will  go  very  far  toward 
proving  what  that  law  is  upon  a  disputed  point. 

§  29.  Their  effect  on  meaning  of  terms.  Thus  the  consent  of 
several  nations,  evidenced  by  treaties,  to  adopt  a  particular  in- 
terpretation of  a  particular  term,  is,  in  the  absence  of  other 
testimony,  strong  evidence  that  such  is  the  true  international 
meaning  belonging  to  it.  It  is  true  that  no  treaty  between  two 
or  more  states  can  affect  the  general  principles  of  international 
law,  or  directly  prejudice  the  interests  of  others,  though  it  may 
do  so  indirectly  by  positively  declaring  the  interpretation  to  be 
given  to  a  doubtful  term,  and  thus  laying  down  a  principle 
binding,  on  them  at  least,  in  their  intercourse  with  the  rest  of 
the  world.  This  doctrine  is  laid  down  with  great  precision  by 
Lord  Grenville  in  his  speech  in  the  house  of  peers,  on  the  con- 
vention of  Russia  in  1801. 

§  30.  Diplomatic  papers.  State  papers,  and  diplomatic  corres- 
pondence  between  statesmen  distinguished  for  their  character  and 
learning,  frequently  contain  much  valuable  information  respect- 
ing the  particular  points  and  questions  of  international  law 
which  are  discussed  by  them.  And  perhaps  these  discussions 
exhibit  the  views  and  opinions  of  particular  states  more  cor- 
rectly than  the  compacts  or  treaties  which  may  result  from 
them,  as  such  conventions  are  always  more  or  less  the  result  of 


J 


CH.  IL—ITS  NATURE  AND  SOURCES.  41 

compromise  or  temporary  necessity.  Moreover,  these  docu- 
ments sometimes  contain  important  admissions  of  what  is,  or 
ought  to  be,  the  law  on  points  not  immediately  involved  in 
the  conflicting  pretensions  which  have  given  rise  to  such  dis- 
cussions. 


4» 


CHAPTER    III. 

SOVEREIGNTY  OF  STATES. 

§  1.  A  Sovereign  State  Defined.  A  state  is  a  body  politic,  or 
society  of  men  united  together  for  mutual  advantage  and  safety. 
Such  a  society  has  aifairs  and  interests  peculiar  to  itself,  and  is 
capable  of  deliberation  and  resolution ;  it  is  therefore  regarded 
as  a  kind  of  moral  person,  possessing  a  will  and  an  understand- 
ing, and  susceptible  of  rights  and  obligations.  From  the  nature 
and  design  of  such  a  society,  it  is  necessary  that  there  should  be 
established  in  it  a  public  authority ^  to  order  and  direct  what  is  to 
be  done  by  each  individual  in  relation  to  the  end  and  object  of 
the  association.  This  political  authority,  whether  vested  in  a 
single  individual  or  in  a  number  of  individuals,  is  properly  the 
sovereignty  of  the  state.  This  term,  however,  in  international 
law,  is  usually  employed  to  express  the  external  rather  than  the 
internal  character  of  a  nation,  with  respect  to  its  ability  or 
capacity  to  govern  itself,  independently  of  foreign  powers.  A 
sovereign  state  may,  therefore,  be  defined  to  be  a7iy  nation  or 
people  organized  into  a  body  politic  and  exercising  the  rights  of 
self-government. 

§  2.  Distinguished  from  a  nation  or  people.  A  state  is  distin- 
guishable from  a  nation  or  a  people^  since  the  former  may  be  com- 
posed of  different  races  of  men,  all  subject  to  the  same  supreme 
authority.  Thus,  the  Austrian,  Russian,  British  and  Ottoman 
empires,  are  composed  of  a  variety  of  nations  and  people.  So, 
also,  the  same  nation  or  people  may  be  subject  to,  or  compose, 
several  distinct  and  separate  states.  Thus  the  Poles  are  subject 
to  the  dominion  of  Austria,  Prussia,  and  Russia,  respectively ; 

42 


J 


CH.  III.— SOVEREIGNTY  OF  STATES.  43 

and  the  Italians  constitute  several  distinct  and  independent 
sovereignties.  The  terms  nation  and  people,  however,  are 
frequently  used  by  writers  on  international  law  as  synonymous 
with  the  term  states. 

§  3.  A  colony  is  a  part  of  a  state.  The  sovereignty  of  a  state 
has  reference  to  its  political  character,  rather  than  to  the  nature 
of  its  territorial  possessions.  The  territory  of  some  states  is  in 
one  compact  body,  like  Prussia,  Bavaria,  and  Belgium,  in 
Europe,  Mexico,  and  the  United  States,  in  America,  while  the 
territory  of  other  states,  like  that  of  Great  Britain,  consists  of 
detached  parts  situate  in  every  quarter  of  the  habitable  globe. 
Under  the  general  appellation  of  state  are  included  all  the  posses- 
sions of  a  nation,  wheresoever  situated,  so  that  a  colony,  however 
distant,  is,  in  the  eye  of  international  law,  as  much  a  part  of 
the  state  which  establishes  it  as  is  a  city  or  province  belonging 
to  its  most  ancient  territory. 

§  4.  Not  itself  a  state.  As  a  colony,  a  possession,  or  a 
dependency,  constitutes  only  a  part  of  the  state,  it  cannot  in 
itself  be  regarded,  in  international  law,  as  a  distinct  political 
organization.  Hence,  any  public  or  private  corporation,  created 
by,  and  deriving  its  authority  from  a  state,  cannot  of  itself 
constitute  a  separate  and  independent  sovereignty.  Thus,  the 
East  India  Company,  although  exercising  the  sovereign  powers 
of  peace  and  war,  with  respect  to  the  native  princes  and  people, 
acted  in  subordination  to  the  supreme  power  of  the  British 
empire,  and  was  represented  by  the  British  government  in  all 
its  relations  with  foreign  sovereigns  and  states. 

§  5.  Sovereignty  and  dependence.  The  mere  fact  of  dependence, 
however,  does  not  prevent  a  state  from  being  regarded  in  inter- 
national law  as  a  separate  and  distinct  sovereignty,  capable  of 
enjoying  the  rights  and  incurring  the  obligations  incident  to 
that  condition.  Much  more  importance  is  attached  to  the  nature 
and  character  of  its  connection  with  other  states,  and  the  degree 
and  extent  of  its  dependence. 

§  6.  Occasional    obedience.      Nor  is    the    sovereignty    of  a 


44  INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

particular  state  necessarily  destroyed  by  its  mere  nominal 
obedience  to  tbe  commands  of  others,  nor  even  by  an  habitual 
influence  exercised  by  others  over  its  councils.  Thus,  the  city 
of  Cracow,  in  Poland,  with  its  territory,  was  declared  by  the 
congress  of  Vienna,  in  1815,  to  be  a  perpetually  free,  independ- 
ent, and  neutral  state,  under  the  protection  of  Russia,  Austria 
and  Prussia.  Although  its  councils  were  habitually  influenced 
by  these  great  powers,  it  was  nevertheless  regarded  in  interna- 
tional law  as  a  sovereign  state ;  and  when,  by  the  convention  of 
1846,  it  was  annexed  to  the  empire  of  Austria,  the  governments 
of  Great  Britain,  France  and  Sweden,  protested  against  the  pro- 
ceeding as  a  violation  of  the  act  of  1815,  by  which  it  was 
recognized  as  an  independent  state. 

§  7.  Feudal  Vassalage.  So,  also,  tributary  states,  and  those 
subject  to  a  kind  of  feudal  dependence  or  vassalage,  are  still 
considered  as  sovereign,  unless  their  sovereignty  is  destroyed  by 
their  relation  to  other  states.  Tribute,  like  that  paid  by  the 
European  maritime  powers  to  the  Barbary  States,  does  not 
necessarily  affect  the  sovereignty  of  the  tributary ;  nor  does  the 
acknowledgment  of  a  nominal  vassalage  or  feudal  dependence, 
like  that  of  Naples  to  the  Papal  See,  prior  to  1818,  necessarily 
impair  the  sovereignty  of  the  vassal  state. 

§  8.  These  may  affect  sovereignty.  But  the  character  of  a 
state  may  be  legally  affected  by  its  connection  with  others,  and 
its  sovereignty  will  be  considered  as  impaired  or  entirely  de-* 
stroyed,  according  to  the  nature  of  the  compact,  the  extent  of 
the  influence  exercised  by  the  superior,  and  the  obedience  ac- 
knowledged or  rendered  by  the  inferior;  no  matter  whether 
such  condition  results  from  political  organization  or  from  trea- 
ties of  unequal  alliance  and  protection.  If  a  state,  in  either  of 
these  modes,  parts  with  its  rights  of  negotiation  and  treaty,  and 
loses  its  essential  attributes  of  independence,  it  can  no  longer 
be  regarded  as  a  sovereign  state,  or  as  a  member  of  the  great 
family  of  nations.  Its  legal  stattis  is  not  changed  by  a  loss  of 
relative  power,  but  by  a  loss  of  the  essential  attributes  of  inde- 


J 


CH.  III.— SOVEREIGNTY  OF  STATES.  45 

pendence  and  sovereignty — the  right  to  exercise  its  volition,  and 
the  capacity  to  contract  obligations, 

§  9.  Effect  of  a  protectorate.  The  effect  of  a  protectorate 
upon  the  sovereignty  of  a  state  must  depend  entirely  upon  the 
character  and  conditions  of  the  protection  afforded.  No  doubt, 
one  state  may  place  itself  under  the  protection  of  another  with- 
out losing  its  international  existence  as  a  sovereign  state,  if  it 
retains  its  capacity  to  treat,  to  contract  alliances,  to  make  peace 
and  war,  and  to  exercise  the  essential  rights  of  sovereignty. 
But  these  rights  must  be  retained  de  facto,  as  well  as  dejure,  for 
although  a  state  may  retain  the  forms  of  independence,  if  it  be 
practically  and  notoriously  governed  by  officers  appointed  by 
another  state,  and  incapable  of  exercising  its  own  volition, 
it  will  be  regarded  as  a  mere  dependence  of  the  governing 
power. 

§  10.  Effect  of  a  union  of  states.  Two  or  more  sovereign 
states  may  be  united  together  under  a  common  ruler,  or  by  a 
federal  compact ;  and  it  will  depend  upon  the  nature  of  this 
union  or  confederation,  whether  such  states  retain  their  separate 
sovereignty,  notwithstanding  this  connection  with  others.  If 
each  separate  state  retains  the  essential  qualities  of  independence, 
— the  right  of  will  and  judgment,  and  the  full  capacity  to  con- 
tract obligations, — it  will  still  be  regarded  as  a  distinct  society 
or  body  politic,  possessing  the  rights  of  sovereignty,  and  subject 
to  its  duties ;  but  if  it  has  lost  these  qualities  by  such  union 
with  others,  either  by  becoming  subject  to  their  will,  or  by  cre- 
ating a  new  national  power,  of  which  it  is  only  a  component 
part,  it  can  no  longer  be  regarded,  in  the  eye  of  international 
law,  as  a  sovereign  state,  although  it  may  retain  many  of  its 
sovereign  rights  with  respect  to  its  confederates. 

§  11.  A  personal  union.  A  union  of  two  or  more  states  under 
a  common  sovereign  is  called  a  personal  union,  if  there  is  no  in- 
corporation, and  if  the  component  parts  are  united  with  a  per- 
fect equality  of  rights.  Thus,  Hanover,  and  the  United  King- 
dom of  Great  Britain  and  Ireland,  were  at  one  time  subject  to 


46  INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

the  same  prince,  but  there  was  no  dependence  on  each  other  and 
both  retained  their  respective  national  rights  of  sovereignty. 

§  12.  A  real  union.  A  rexjl  union  of  different  states,  under  a 
common  sovereign,  is  where  the  several  component  parts  are  not 
only  united  under  the  same  sceptre,  but  the  sovereignty  of  each 
is  merged  in  the  general  sovereignty  of  the  empire,  as  to  their 
international  relations  with  foreign  powers,  altliough  still  retain- 
ing respectively  their  distinct  fundamental  laws  and  other 
political  institutions.  Thus  the  Austrian  monarchy,  prior  to 
1849,  was  a  real  union,  composed  of  the  hereditary"  dominions, 
the  kingdoms  of  Hungary,  Bohemia,  and  other  states,  each  of 
which  retained  a  separate  sovereignty  with  respect  to  its  coordi- 
nate states,  but  were  component  parts  of  the  empire,  with  respect 
to  their  international  relations  with  other  powers. 

§  13.  An  Incorporate  union,  An  incorporate  union  is  where 
several  states  are  united  under  a  common  sovereign,  and  a 
common  government  and  legislature,  although  each  may  have 
its  distinct  laws  and  a  separate  but  subordinate  administration. 
Thus  the  three  kingdoms  of  England,  Scotland,  and  Irelan< 
are  incorporated  into  an  empire,  the  sovereignty  of  each  original 
kingdom  being  completely  merged  by  their  successive  unions  ii 
the  United  Kingdom,  which,  in  international  relations, 
regarded  as  a  single  state. 

§  14.  A  Federal  Union.  Sovereign  states  are  sometime 
firmly  united  together  by  a  federal  compact,  without  acknow- 
ledging any  common  sovereign.  This  kind  of  union  is  perhaj 
less  frequent  among  monarchies  than  among  states  which  hav( 
a  republican  form  of  government.  From  the  extremely  com- 
plicated nature  of  these  leagues  or  federal  compacts,  it  i^ 
sometimes  very  difficult  to  determine  how  far  the  sovereignty! 
of  each  nation  is  affected  or  impaired  by  the  conditions  oi 
regulations  of  such  union.  These  compacts  are  divided  by  pub- ' 
licists  into  two  general  classes,  confederated  states  and  composite 
stales. 

§  15.  Confederated  States.     By  a  confederation,  or  system  of. 


n  of  M 

J 


CH.  IIL—SOVEREIONTY  OF  STATES.  47 

confederated  states^  we  understand  that  kind  of  union,  or  com- 
pact, which  does  not  essentially  differ  from  an  ordinary  treaty 
of  equal  alliance.  The  resolutions  of  the  federal  body  are 
enforced  not  as  laws  directly  binding  upon  the  individual  sub- 
jects of  each  state,  but  upon  each  separate  government  which 
adopts  them,  and  gives  them  the  force  of  law  within  its  own 
jurisdiction ;  thus  leaving  to  each  state  the  exercise  of  its  own 
will  and  responsibility  in  its  general  intercourse  with  foreign 
powers. 

The  confederation  of  1778,  between  the  United  States  of 
North  America,  was  nothing  more  than  a  system  of  confederated 
states.  The  difficulty  of  enforcing  the  laws  and  regulating 
foreign  affairs  of  the  government  led  to  the  adoption  of  a  con- 
stitutional Union. 

§  16.  A  Composite  State.  A  composite  state,  or  supreme  federal 
government,  results  from  a  grant  of  supreme  federal  powers  to 
the  government  of  the  union,  with  the  consequent  limitations 
imposed  upon  the  separate  governments  of  the  several  compact 
states.  Each  separate  state  may  retain  its  own  legislature,  and 
its  distinct  laws  and  administration,  and  its  separate  sovereignty 
may  still  subsist  internally  in  respect  to  its  coordinate  states, 
and,  in  respect  to  the  supreme  federal  government,  in  questions 
of  power  not  expressly  granted  to  it;  but  in  all  external  relations 
its  sovereignty  is  completely  merged  and  destroyed. 

§  17.  Semi-Sovereign  States.  Semi-sovereign  states  are  those 
which  do  not  possess  all  the  essential  rights  of  sovereignty,  and 
which,  therefore,  can  be  regarded  as  subjects  of  international 
law  only  indirectly,  or  at  least  in  a  subordinate  degree.  Such 
states  must  generally,  in  war,  share  the  fortunes  of  their  pro- 
tector, and  in  peace,  must  have  his  consent  to  the  engagements 
they  may  desire  to  form  with  others.  But  as  they  are,  for  cer- 
tain purposes,  and  under  certain  limitations,  to  be  dealt  with 
independently  of  such  protectors,  it  is  necessary  to  regard  them 
as  distinct  organizations.  Such  states  are  usually  independent 
in  their  action,  on  mere  questions  of  comity,  such  as  the  rights 


48  INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

of  strangers  in  their  own  territory,  and  of  their  own  subjects  in 
foreign  countries. 

§  18.  How  Sovereignty  is  acquired.  The  sovereignty  of  a 
state  is  acquired  either  at  the  origin  of  the  civil  society  of  which 
it  consists,  or  when  it  separates  itself  from  the  community  of 
which  it  formed  a  part,  and  assumes  tlie  rights  and  obligations 
of  a  distinct  and  independent  political  organization.  All 
questions  with  respect  to  the  origin  of  states,  belonging  to  the 
province  of  political  philosophy,  rather  than  to  that  of  inter- 
national law. 

§  19.  Identity  not  affected  by  Internal  changes.  A  state,  as  to 
the  individual  members  of  which  it  is  composed,  is  a  fluctuating 
body,  being  kept  up  by  a  constant  succession  of  new  members ; 
so,  also,  its  form  of  government  and  municipal  constitution  may 
be  subjected  to  frequent  alterations  and  changes ;  but  these  fluc- 
tuations and  changes  in  the  constituent  parts  of  the  body  politic, 
and  in  their  relations  to  each  other,  do  not  aifect  the  character 
of  the  body  itself,  in  its  external  relations  to  other  communities, 
— ^that  is,  in  international  law.  The  state  itself  remains  the 
same  political  body,  until  its  identity  is  destroyed  by  interrup- 
tion in  its  existence  as  a  separate  and  distinct  society ;  and  ii 
neither  loses  any  of  its  rights  nor  is  discharged  from  any  of  its 
obligations,  by  any  mere  municipal  change  or  internal  revolution^ 

§  20.  Effect  of  civil  war.  Neither  a  civil  war,  nor  the  revolt 
of  a  province  or  a  colony,  affect  the  sovereignty  of  the  original 
state ;  and  although  a  foreign  state  may,  without  violating  any 
rule  of  international  law,  assist  another  state  in  suppressing  a 
rebellion,  it  cannot  assist  rebels  against  an  established  govern- 
ment duly  reorganized,  without  committing  an  act  of  hostility 
against  that  government.  Whilst  the  civil  war  continues,  or 
while  a  revolted  colony  or  province  is  sliaking  off  the  bonds  of 
a  former  government,  the  safer  rule  is  for  foreign  states  to  re-^ 
main  mere  passive  spectators,  conceding  only  such  belligereni 
rights  to  the  contestants  as  the  particular  circumstances  of  the] 
case  may  justify  or  require. 


CH,  III.— SOVEREIGNTY  OF  STATES.  49 

§  21.  When  a  new  state  may  be  recognized.  But  when  the 
contest  is  virtually  determined,  and  the  revolted  province  or 
colony  has  virtually  established  its  independence,  and  organized 
its  separate  government,  foreign  powers  may,  without  any  just 
offense  to  the  metropolitan  government,  recognize  that  inde- 
pendence and  enter  into  full  diplomatic  and  commercial  relations 
with  the  new  state  as  a  separate  and  distinct  sovereignty. 

§  22.  Recognition  by  whom  made.  As  the  time  and  circum- 
stances of  such  recognition  of  the  independence  and  sovereignty 
of  a  revolted  province,  or  of  its  claim  to  international  belliger- 
ent rights  during  the  war,  might  necessarily  affect  the  relations 
of  the  recognizing  power  and  the  metropolitan  government, 
such  recognition  must  be  made  by  the  sovereign  power  of  the 
state,  and  not  by  any  subordinate  authority,  or  by  the  private 
judgment  of  individual  subjects. 

§  23.  State  sovereignty,  how  lost.  The  sovereignty  of  a  state 
may  be  lost  in  various  ways.  It  may  be  vanquished  by  a  for- 
eign power  and  become  incorporated  into  the  conquering  state 
as  a  province,  or  as  one  of  its  component  parts ;  or  it  may  vol- 
untarily unite  itself  with  another  in  such  a  way  that  its  inde- 
pendent existence  as  a  state  will  entirely  cease.  Again,  two 
sovereign  states  may  become  incorporated  into  one,  so  as  to  form 
a  new  sovereign  state  in  place  of  the  other  two  whose  independ- 
ent existence,  as  states,  is  entirely  destroyed  by  such  incor- 
poration. 

§  24.  Changes  in  the  government  of  a  state.  Questions  of 
great  importance  sometimes  arise  with  respect  to  the  interna- 
tional effects  produced  by  internal  changes  in  the  form  of  gov- 
ernment, and  by  a  change  in  the  sovereignty  of  a  state,  with 
respect  to  its  duties  and  obligations  toward  others.  These 
questions  relate  to  treaties,  public  debts,  the  public  domain,  pri- 
vate rights  of  property,  and  to  responsibility  for  wrongs  done 
to  the  governments  or  subjects  of  other  states. 

§  25.  Changes  by  internal  revolution.  As  a  general  nde,  a 
mere  change  in  the  form  of  government,  or  in  the  person  of  the 

6  G 


50  INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

ruler,  does  not  affect  the  duties  and  obligations  of  a  state  to- 
ward foreign  nations.  All  treaties  of  amity,  commerce,  and 
real  alliance,  remain  in  force  precisely  as  if  no  intervening 
change  had  taken  place,  except  in  cases  where  the  compact  re- 
lates to  the  form  of  government  itself,  or  to  the  person  of  the 
ruler  in  the  nature  of  a  guaranty.  Public  debts,  whether  due 
to  or  from  the  revolutionized  state,  are  neither  canceled  nor 
affected  by  any  change  in  the  constitution  or  internal  govern- 
ment of  a  state.  So,  also,  of  its  public  domain  and  right  of 
property.  If  a  revolution  be  successful,  and  a  new  constitution 
be  established,  the  public  domain  and  public  property  pass  to 
the  new  government.  The  state,  on  the  other  hand,  remains 
responsible  for  the  wrongs  done  to  the  government  or  subjects 
of  another  state,  notwithstanding  any  intermediate  change  in 
the  form  of  its  government  or  in  the  persons  of  its  rulers. 
These  results  flow  necessarily  from  the  principle  that  the  identity 
of  a  state  is  preserved,  notwithstanding  the  accidental  changes 
in  its  internal  constitution. 

§  26.  By  dismemberment  of  a  part.  The  dismemberment  of  a 
state,  by  the  loss  of  a  portion  of  its  subjects  and  territory,  does 
not  affect  its  identity,  whether  such  loss  be  caused  by  foreign 
conquest,  or  by  the  revolt  and  separation  of  a  province.  Such 
a  change  no  more  affects  its  rights  and  duties,  than  a  change  in 
its  internal  organization,  or  in  the  person  of  its  rulers.  This 
doctrine  applies  to  debts  due  to,  as  well  as  from,  the  state,  and 
to  its  rights  of  property  and  its  treaty  obligations,  except  so  far 
as  such  obligations  may  have  particular  reference  to  the  revolted 
or  dismembered  territory  or  province. 

§  27.  By  division.  The  case  is  slightly  different  where  one 
state  is  divided  into  two  or  more  distinct  and  independent  sov- 
ereignties. In  that  case,  the  obligations  which  had  accrued  to 
the  whole,  before  the  division,  are,  (unless  they  have  been  the 
subject  of  a  special  agreement,)  rateably  binding  upon  the  dif- 
ferent parts.  This  principle  is  established  by  the  concurrent 
opinions  of  text- writers,  the  decisions  of  courts,  and  the  practice 


CH.  IIL—SOVEREIGNTY  OF  STATES.  51 

of  nations.     It  was  incorporated  into  the  treaty  by  which  the 
modern  kingdom  of  Belgium  was  established. 

§  28.  By  incorporation.  The  converse  of  this  rule  is  also 
generally  true;  that  is,  where  several  separate  states  are  incor- 
porated into  a  new  sovereignty,  the  rights  and  obligations  which 
had  accrued  to  each  one  separately,  before  the  incorporation,  be- 
long to,  and  are  binding  upon  the  new  state  which  is  created  by 
such  incorporation.  But  the  rule  must  be  varied  or  modified  to 
suit  the  nature  of  the  union  formed,  and  the  character  of  the 
act  itself  of  incorporation  in  each  particular  case.  Thus,  a  dis- 
tinction must  be  made  between  the  mere  union,  or  confederation 
of  states,  and  the  creation  of  a  new  sovereignty,  or  composite 
state.  In  the  one  case,  the  obligations  would  remain  with  the 
states  originally  separate,  while  in  the  other  case,  they  would, 
as  a  general  rule,  be  transferred  from  the  constituent  parts  to 
the  new  body  politic.  But  if,  by  the  act  of  incorporation,  and 
by  the  constitution  of  the  composite  state,  the  rights  and  obli- 
gations of  the  component  parts  were  to  remain  with  the  states 
originally  separate,  it  could  hardly  be  contended  that  the  new 
sovereignty  had  either  acquired  the  one  or  incurred  the  other. 
What  might  be  claimed  or  incurred,  under  a  general  rule  of 
presumptive  law,  could  hardly  be  enforced  against  written  in- 
struments which  provide  especially  against  such  claims  or  obli- 
gations. 


CHAPTEE    IV. 

RIGHTS  OF   INDEPENDENCE  AND  SELF-PRESERVATION. 

§  1.  Independence  of  a  Sovereign  state.  Eveiy  sovereign 
state  may,  from  the  very  nature  of  its  organization,  freely 
exercise  its  sovereign  rights  in  any  manner  not  inconsistent  with 
the  equal  rights  of  other  states.  The  very  fact  of  its  sovereignty 
implies  its  independence  of  the  control  of  any  other  state.  It 
may  therefore  exercise  all  rights  and  contract  all  obligations 
incident  to  its  sovereignty,  as  a  separate,  distinct,  and  independ- 
ent society,  or  political  organization.  These  rights  and 
obligations  are  limited  only  by  the  law  of  nature  and  the 
existence  of  similar  rights  in  others. 

§  2.  May  establish  its  own  Government.  The  right  of  every 
sovereign  state  to  establish,  alter,  or  abolish  its  own  municipal 
constitution  and  form  of  government,  would  seem  to  follow,  as 
a  necessary  conclusion,  from  these  premises.  And  from  the 
same  course  of  reasoning,  it  will  be  inferred,  that  no  foreign 
state  can  interfere  with  the  exercise  of  this  right,  no  matter  what 
political  or  civil  institutions  such  sovereign  state  may  see  fit  to 
adopt  for  the  government  of  its  own  subjects  and  citizens.  It 
may  freely  change  from  a  monarchy  to  a  republic,  from  a  republic 
to  a  limited  monarchy,  or  to  a  despotism,  or  to  a  government  of 
any  imaginable  shape,  so  long  as  such  change  is  not  of  a  charac- 
ter to  immediately,  or  of  necessity,  aifect  the  independence, 
freedom  and  security  of  others. 

§  3.  Choice  of  its  own  rulers.  The  right  of  a  sovereign  state 
to  the  choice  of  its  own  rulers  rests  upon  the  same  foundation 
as  its  right  to  determine  the  form  of  its  own  internal  constitu- 

52 


CH.  TV.— INDEPENDENCE  AND  SELF-PRESERVATION.     53 

tion ;  and  the  interference  of  a  foreign  state  in  the  one  case 
cannot  be  justified  except  under  the  same  circumstances  and  upon 
the  same  grounds  as  in  the  other,  viz.,  the  immediate  and  pressing 
danger  to  its  ovm  independence  and  security. 

§  4.  Grounds  of  pacific  Interference.  The  principal  grounds 
upon  which  such  interference  has  been  justified  are :  first,  self- 
defense  ;  second,  the  obligations  of  treaty  stipulations ;  third, 
humanity ;  and  fourth,  the  invitation  of  the  contending  parties  in 
a  civil  war.  We  will  here  examine  each  of  these  grounds,  with 
respect  to  pacific  interference,  reserving  for  another  place  a  dis- 
cussion of  how  far  they  will  justify  a  resort  to  force  or  a  war  of 
intervention. 

§  5.  For  self-secnrity.  Foreign  interference  in  the  internal 
affairs  of  a  state,  has  sometimes  been  defended  on  the  groimd  of 
a  necessity  on  the  part  of  the  interfering  states,  involving  their 
own  particular  security.  That  a  right  of  pacific  interference, 
and  even  of  armed  intervention,  may  sometimes  grow  out  of 
such  threatened  danger  to  a  particular  state,  cannot  be  doubted. 
So,  also,  there  maybe  an  impending  danger,  affecting  the  general 
security  of  nations,  which  may  justify  an  interference  on  their 
part,  for  the  security  of  their  own  independence  and  the  preser- 
vation of  peace.  But  such  danger  must  be  threatening  and 
immediate,  and  not  a  mere  remote  contingency ;  and  even  then 
the  interference  must  be  limited  to  the  removal  of  the  danger 
itself;  beyond  that  it  would  be  unlawful. 

§  6.  This  usually  a  mere  excuse.  But  this  impendmg  or 
contingent  danger  to  the  general  peace  of  nations,  or  to  the 
independence  of  particular  states,  is  more  frequently  appealed 
to  as  an  excuse,  than  as  2l  justifiable  reason,  for  foreign  interference 
in  the  internal  affairs  of  others.  And  instead  of  preserving 
peace,  such  unlawful  interference  has  frequently  been  the  cause 
of  wars  the  most  cruel  and  bloody  that  have  ever  stained  the 
annals  of  history.  We  scarcely  need  refer  to  the  wars  which 
resulted  from  foreign  interference  in  the  internal  affairs  of 
France  in  the  revolution  of  1789,  in  proof  of  our  assertion. 


54  INTERNATIONAL    LAW  AND  LAWS  OF    WAB. 

§  7.  Chateaubriand's  views.  M.  de  Chateaubriand  in  a  most 
able  discussion  in  the  French  Cliamber,  on  the  Spanish  war  of 
1823,  announced  the  modern  rule  of  international  law  on  this 
subject  to  be,  ^^That  no  government  has  a  right  to  interfere  in 
the  affairs  of  another  government,  except  in  case  where  the 
security  and  immediate  interests  of  the  first  government  are  com- 


§  8.  Under  treaty  stipulations.  Another  ground  of  foreign 
interference  in  the  internal  affairs  of  a  sovereign  state  advo- 
cated by  some  text- writers,  is  the  obligation  of  treaty  stipu- 
lations. But  if  the  interference  is  in  itself  unlawful,  no 
previously  existing  stipulations  can  make  it  lawful ;  for 
the  reason  that  a  contract  against  public  morals  has  no 
binding  force,  and  there  is  more  merit  in  its  breach  than  in  its 
fulfillment. 

§  9.  On  the  plea  of  humanity.  Another  ground  of  foreign 
interference,  in  the  internal  affairs  of  a  sovereign  state,  is  that 
of  humanity,  it  being  done  for  the  alleged  purpose  of  stopping 
the  effusion  of  blood  caused  by  a  protracted  and  desolating  civil 
war  in  the  bosom  of  the  state  so  interfered  with.  If  such  inter- 
ference be  in  the  nature  of  a  pacific  mediation,  one  state  merely 
proposing  its  good  offices  for  the  settlement  of  the  intestine 
dissensions  of  another  state,  there  can  be  no  doubt  of  its  lawful- 
ness. 

§  10.  By  invitation  of  contending  factions.  Again,  suppose 
such  interference  in  the  internal  affairs  of  another  state  be  made 
on  the  invitation  of  the  contending  parties  in  the  civil  war? 
If  the  invitation  be  from  only  one  of  the  contestants,  it  can,  by 
itself,  confer  no  rights  whatever  as  against  the  other  party. 
But  if  both  parties  unite  in  the  invitation,  it  will  afford  just 
grounds  for  the  pacific  interference  of  the  mediating  power 
How  far  such  invitations  will  justify  an  armed  intervention 
between  the  contending  parties,  will  be  discussed  in  another 
chapter.  It  is  sufficient  to  remark  in  this  place,  that  the  opinion 
or  decision  of  a  mediating  power,  whether  the  mediation  be 


*l 


I 


CH.  IV.— INDEPENDENCE  AND  SELF-PRESERVATION.      55 


proffered  or  invited,  is  of  the  nature  of  advice,  or  rather  of  a 
proposition  for  an  amicable  adjustment  of  existing  differences ; 
which  proposition  may  be  rejected  by  one  or  both  of  the  parties, 
without  just  offense  to  the  mediator. 

§  11.  Arbitration  between  parties  in  a  civil  war.  But  if  such 
proffered  or  invited  mediation  is  of  the  nature  of  an  arbitration, 
in  which  the  question  of  difference  is  submitted  to  the  decision 
of  the  mediating  power  as  an  arbitrator ,  with  an  agreement  to 
abide  by  such  decision,  neither  party  can  properly  refuse  to 
abide  by  the  result  of  the  reference,  unless  it  be  shown  that  the 
aAvard  has  been  made  in  collusion  with  one  of  the  parties,  or 
that  it  exceeds  the  terms  of  the  submission.  The  general  rules 
governing  such  arbitrations,  are  the  same  as  those  governing 
arbitrations  between  sovereign  and  independent  states,  which 
will  be  discussed  in  another  chapter. 

§  12.  Right  of  arbitrator  to  enforce  Ms  decision.  But  sup- 
pose the  award  has  been  made  without  collusion,  and  has  been 
confined  to  the  terms  of  the  submission,  and  that  one  of  the 
parties  should  refuse  to  abide  by  the  decision,  although  both 
agreed  to  do  so,  will  such  refusal  justify  the  mediating  power  in 
employing  force  to  compel  obedience  to  its  decision?  To 
decide  this  question,  it  will  be  necessary  to  inquire  into  the 
particular  circumstance  of  each  case.  The  arbitrator's  right  to 
use  force,  in  order  to  carry  his  decision  into  effect,  if  it  exist  at 
all,  must  be  deduced  from  the  terms  of  the  agreement  entered 
into  by  the  contracting  parties  to  the  submission.  It  does  not 
result,  as  a  necessary  consequence  of  his  undertaking  the  office 
of  arbitrator. 

§  13.  Independence  in  legislation  and  courts.  Another  inci- 
dent to  the  sovereignty  of  a  state  is  its  independence  of 
every  other  in  the  exercise  of  its  legislative  and  judicial 
power,  so  far  as  such  exercise  does  not  conflict  with  the  sove- 
reign rights  of  other  states,  or  violate  the  stipulations  of  treaties. 
But  this  subject  will  be  more  particularly  discussed  in  another 
chapter. 


56  INTERNATIONAL    LAW  AND  LAWS  OF   WAR. 

§  14.  In  rewards  and  punishments.  Every  sovereign  state  being 
independent  of  all  others  in  the  exercise  of  its  legislative  and 
judicial  powers,  it  follows,  as  a  necessary  consequence,  that  it  is 
also  independent  of  all  others  in  the  rewards  and  punishments 
of  its  own  subjects.  It  may  make  its  own  laws  defining  offenses, 
organize  its  own  tribunals  for  trying  them,  and  for  awarding 
punishments  to  its  own  subjects,  and  it  may  inflict  its  punish- 
ments upon  its  own  subjects  found  in  its  own  vessels  upon  the 
high  seas,  or  within  its  own  territorial  jurisdiction.  Moreover, 
its  laws  and  penalties  follow  its  citizens  into  all  places  and  all 
countries. 

§  15.  Only  within  its  own  territory.  But  while  the  laws  of  a 
state  follow  its  own  citizens  into  other  countries,  it  can  neither 
arrest  nor  punish  them  within  the  territorial  jurisdiction  of  a 
foreign  state  except  where  such  a  right  is  conceded  by  treaty 
stipulations.  The  case  of  Martin  Koszta,  in  1853,  and  the  dis- 
cussions resulting  from  his  seizure  and  forcible  release  in  the 
port  of  Smyrna,  have  given  to  this  rule  of  international  law  a 
prominent  position  in  the  public  mind. 

§  16.  Interference  in  cases  of  dependent  states.  There  are 
certain  cases  where  the  very  character  of  the  constitution  or 
government  of  one  state  may  authorize  the  interference  of  an- 
other in  the  choice  of  its  rulers.  Such  cases,  however,  are 
mainly  confined  to  semi-sovereign,  or  dependent  states.  But 
the  states  of  the  church  have  usually  been  regarded,  in  the  in- 
ternational law  of  Europe,  as  sovereign  and  independent. 
Nevertheless,  Austria,  France,  and  Spain,  as  catholic  countries, 
have  a  voice  in  the  election  of  the  Pope,  who  is  the  temporal 
sovereign  of  the  Roman  states,  as  well  as  the  supreme  Pontiff 
of  the  Roman  Catholic  Church.  But  if  these  spiritual  and 
temporal  offices  should  be  separated,  the  right  of  foreign  states 
to  interfere  in  the  choice  of  the  person  to  fill  the  office  of  civil 
ruler,  might  well  be  questioned. 

§  17.  In  case  of  confederated  states.  In  the  case  of  a  com- 
posite state,  or  a  confederation  of  several  states,  the  right  of  one 


CH.  IV.— INDEPENDENCE  AND  SELF-PRESERVATION.     57 

state  to  interfere  in  the  affairs  of  another,  or  of  the  supremo 
government  to  interfere  with  that  of  one  of  its  constituents,  will 
depend  upon  the  constitution  or  plan  of  confederation ;  it  docs 
not  result  ifrom  any  general  right  in  sovereign  states,  as  recog- 
nized by  international  law. 

§  18.  Right  of  self-preservation.  The  right  of  self-preserva- 
tion is  regarded  as  one  of  the  most  essential  and  important 
rights  incident  to  state  sovereignty,  and  lies  at  the  foundation 
of  all  the  rest.  It  is  not  only  a  right  with  respect  to  other 
states,  but  a  duty  with  respect  to  its  own  members,  and  one  of 
the  most  solemn  and  important  duties  which  it  owes  to  them. 
"  The  right  of  self-preservation,"  says  Phillimore,  "  is  the  first 
law  of  nations,  as  it  is  of  individuals.  A  society  which  is  not 
in  a  condition  to  repel  aggression  from  without,  is  wanting  in 
its  principal  duty  to  the  members  of  which  it  is  composed,  and 
to  the  chief  end  of  its  institution." 

§  19.  Means  incident  to  this  right.  This  right  of  self-preser- 
vation necessarily  involves  all  other  incidental  rights  which  are 
^essential  as  means  to  give  eifect  to  the  principal  end.  And 
other  nations  have  no  right  to  prescribe  what  these  means  shall 
be,  or  to  require-  any  account  or  explanation  of  the  conduct  of  a 
sovereign  state  in  this  respect,  except  so  far  as  their  own  peace 
or  safety  may  be  aifected  or  threatened.  The  means  usually 
resorted  to  for  this  purpose  are  the  construction  of  fortifications, 
the  organization  of  military  and  naval  forces,  and  the  contrac- 
tion of  alliances  with  other  states.  "The  full  liberty  of  a 
nation  in  this  respect,"  says  Phillimore,  "  cannot,  as  a  general 
principle  of  international  law,  be  too  boldly  announced  or  too 
firmly  maintained." 

§  20.  May  be  limited  by  treaty.  But  the  exercise  of  these  in- 
cidental rights  may  be  modified  or  controlled  by  special  com- 
pacts freely  entered  into  with  other  states.  Thus,  by  the  treaties 
of  1748,  and  1763,  France  engaged  to  demolish  the  fortifica- 
tions of  Dunkirk,  and  this  stipulation,  so  humiliating  to  the 
French  nation,  was  not  effaced  till  the  treaty  of  1783.     Again, 

H 


58  INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

by  the  treaty  of  1816,  France  engaged  to  demolish  the  fortifica- 
tions of  Huningen,  and  never  to  renew  them  nor  to  replace 
them  by  other  fortifications  within  three  leagues  of  the  city  of 
B^le.  By  the  treaty  of  1856,  between  Russia,  Turkey,  and  the 
allies,  the  former  stipulated  to  relinquish  her  right  to  construct 
military-marine  arsenals,  to  maintain  a  naval  force  in  the  Black 
Sea.  All  such  compacts,  when  freely  entered  into,  are  binding, 
notwithstanding  that  they  limit  the  natural  rights  of  independ- 
ent states. 

§  21.  By  the  rights  of  others.  These  incidental  rights  may 
also  be  modified  or  limited,  by  the  equal  and  corresponding 
rights  of  other  states.  If,  under  the  plea  of  self-defense,  a 
nation  makes  extraordinary  warlike  preparations,  inconsistent 
with  pretended  pacific  intentions,  and  threatening  to  the  peace 
and  independence  of  others,  such  threatened  states  may  very 
properly  demand  an  explanation,  and,  if  none  of  a  satisfactory 
character  is  given,  to  require  a  discontinuance  of  such  hostile 
demonstrations.  Such  hostile  preparations,  if  not  satisfactorily 
explained,  may  become  a  matter  of  serious  complaint,  but  sel- 
dom, if  ever,  in  themselves  alone  a  just  cause  of  war. 

§  22.  Increase  of  army  and  navy.  A  distinction,  however, 
must  be  made  between  those  means  and  preparations  for  self- 
defense,  which  are  exclusively  defensive^  and  those  which,  from 
their  nature,  may  also  be  regarded  as  offensive.  Thus  an  ex- 
traordinary increase  of  the  military  and  naval  forces  of  a  state, 
may  be  calculated  to  alarm  other  nations  whose  peace  and  se- 
curity they  may  appear  to  menace.  It  is,  therefore,  usual  under 
such  circumstances,  to  require  and  to  receive  amicable  explana- 
tions of  such  warlike  preparations.  And  if  asked  for  in  a 
proper  tone  and  spirit,  the  explanation  cannot  be  properly  re- 
fused, without  giving  offense,  or,  at  least,  well-founded  cause  for 
suspicion. 

§  23.  Of  fortifications  and  military  schools.  Not  so,  however, 
with  respect  to  the  erection  and  arming  of  fortifications,  which 


CH.  IV.— INDEPENDENCE  AND  SELF-PRESEBVATION.     59 

are  essentially  means  of  defense  and  self-preservation.  That 
such  works  are  of  immense  assistance  in  carrying  on  military 
and  naval  operations  against  others,  cannot  be  doubted,  but  they 
cannot  of  themselves  be  injurious  or  dangerous  to  foreign  pow- 
ers. They,  therefore,  are  not  just  causes  of  complaint  by  others. 
The  same  may  be  said  of  military  schools,  and  a  general  diffu- 
sion of  military  education  and  military  science  among  the  sub- 
jects of  a  state.  They  are  legitimate  and  proper  means  of  self- 
preservation,  which  every  sovereign  state  has  a  perfect  right  to 
use,  and  others  have  no  right  to  require  an  account  of  its  con- 
duct in  this  respect. 

§  24.  Extra-territorial  defense.  The  means  of  self-preserva- 
tion which  we  have  hitherto  considered  as  the  right  of  a  sover- 
eign state  to  resort  to,  are  such  as  are  made  within  its  own 
dominions,  or  on  the  high  seas.  It  has  been  contended  by  some 
that,  for  the  same  reasons,  a  state  may  extend  its  precautionary 
measures  without  its  own  territorial  limits  and  within  the  bor- 
ders of  a  neighboring  state.  Mr.  Phillimore  describes  a  hy- 
pothetical case  which  would  come  under  this  pretended  rule  of 
international  jurisprudence.  "  A  rebellion,  or  a  civil  commo- 
tion, it  may  happen,  agitates  a  nation ;  while  the  authorities  are 
engaged  in  repressing  it,  bands  of  rebels  pass  the  frontier,  shel- 
ter themselves  under  the  protection  of  the  conterminous  state, 
and  from  thence,  with  restored  strength  and  fresh  appliances, 
renew  their  invasions  upon  the  state  from  which  they  have  es- 
caped. The  invaded  state  remonstrates.  The  remonstrance, 
whether  from  favor  to  the  rebels,  or  feebleness  of  the  executive, 
is  unheeded,  or,  at  least,  the  evil  complained  of  remains  unre- 
dressed. In  this  state  of  things,  the  invaded  state  is  warranted 
by  international  law,  in  crossing  the  frontier,  and  in  taking  the 
necessary  means  for  her  safety,  whether  these  be  the  capture  or 
dispersion  of  the  rebels,  or  the  destruction  of  their  stronghold, 
as  the  exigencies  of  the  case  may  fairly  require." 

§  25.  Violation  of  territorial  rights.  But  such  measures  are 
obviously  violations  of  territorial  rights,  and,  even  where  neces- 


60  INTERNATIONAL   LAW  AND  LAWS  OF  WAB. 

sary,  are  acts  of  hostility,  and  the  exercise  of  belligerent  rights 
and  not  the  pacific  right  of  self-defense.  The  case  to  which  Mr. 
Phillimore  has  reference,  is  that  of  the  destruction  of  the 
steamer  "Caroline,"  in  which  his  own  government  apologized 
for  its  violation  of  our  territorial  jurisdiction. 


CHAPTER   V. 

RIGHTS  OF  EQUALITY. 

§  1.  Natural  equality  of  states.  "Nations/'  says  Vattel, 
"composed  of  men,  and  considered  as  so  many  free  persons 
living  together  in  the  state  of  nature,  are  naturally  equal,  and 
inherit  from  nature  the  same  obligations  and  rights.  Power  or 
weakness  does  not  in  this  respect  produce  any  difference.  A 
dwarf  is  as  much  a  man  as  a  giant ;  a  small  republic  is  no  less  a 
sovereign  state  than  the  most  powerful  kingdom."  In  other 
words,  all  sovereign  states,  without  respect  to  their  relative 
power,  are,  in  the  eye  of  international  law,  equal,  being  endowed 
with  the  same  natural  rights,  bound  by  the  same  duties,  and 
subject  to  the  same  obligations. 

§  2.  Consequence  in  regard  to  rights.  A  necessary  consequence 
of  this  equality  of  sovereign  states  is  the  general  rule  of  public 
law,  that,  "  whatever  is  lawful  for  one  nation  is  equally  la\vful 
for  any  other ;  and  whatever  is  unjustifiable  in  the  one  is  equally 
so  in  the  other." 

§  3.  In  regard  to  titles.  Another  necessary  consequence  of 
this  equality  is  the  rule  that  all  sovereign  princes  and  states 
may  assume  whatever  titles  of  dignity  they  think  fit,  and  may 
exact  from  their  own  subjects  the  corresponding  marks  of  honor. 
But  their  recognition  by  other  states  is  not  a  matter  of  strict 
right,  especially  in  the  case  of  new  titles  of  higher  dignity 
assumed  by  sovereigns. 

§  4.  Effect  of  custom  and  treaties.  Where,  however,  we  wish 
to  promote  a  friendly  intercourse  with  another  nation,  or  to  have 
another  state  recognize  the  titles  we  have  conferred  on  our  public 

6  61 


62  INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

officers,  we  cannot  very  well  refuse  to  acknowledge  those  wliicli 
it  has  given  to  its  rulers;  so,  also,  with  respect  to  honors  and 
distinctions  claimed  as  due  to  such  rulers,  policy,  friendship  and 
fear  have  not  unfrequently  induced  certain  Htatcs  to  yield  the  pre- 
cedency to  others.  This  ha*s  caused  the  establishment  in  Europe,  at 
different  ])criodH,  of  different  regulations  with  respect  to  foreign 
ceremonial.  This  ceremonial  is  foundcsd,  in  [)art,  U2)on  custom, 
and,  in  part,  upon  the  stipulations  of  conventions  and  treaties. 
There  can  be  no  doubt  that  the  natural  (xpiality  of  sovereign 
states  may  be  modified  by  the  consent  which  is  implied  from 
constant  usage,  or  by  positive  compacts  voluntarily  entered  into, 
so  as  to  entitle  one  state  to  a  superiority  over  another,  in  respecjt 
to  external  matters,  such  as  rardc,  titles,  and  other  ceremonial 
distinctions. 

§  5.  The  Pope  and  Emperor  of  Germany.  Thus  the  catholic 
powers  (joncxnle  the  precedency  to  the  Pope,  ius  the  visible  head 
of  the  church ;  but  Russia,  and  the  protestant  stiitcs  of  Europe, 
consider  him  only  as  a  sovereign  prince  in  Italy,  and  as  such, 
entitled  to  royal  honors,  l)ut  not  to  any  precedency  from  his  rank 
as  sovereign  pontiff.  The  Emperor  of  Ciernuiny,  under  the 
former  constitution  of  the  empire,  was  entitled  to  precedence 
o\i\Y  all  other  temporal  princes,  as  the  supposed  successor  of 
Charlemagne,  and  of  the  CVcsars,  but  the  claim  is  considered  to 
have  been  lost  by  the  dissolution  of  the  Germanic  Constitution, 
and  tlu^  nc^w  organization  of  the  Austrijin  Empire. 

§  6.  Dignity  of  a  state  represented  by  its  ruler.  The  sovereign, 
or  ruler  of  a  state,  is  considered,  in  international  law,  as  repre- 
senting, in  his  person,  its  sovereign  dignity.  It  matters  not 
whether  he  is  a  monarch  or  a  president,  whether  he  is  the  fie /acto 
or  the  de  jure  head  of  a  nation,  (if  he  has  been  duly  recognized 
as  such,)  custom  has  invested  his  person  with  certain  interna- 
tional rights,  as  the  r{»i)res(;ntative  of  his  state.  He  is  therefore 
entitled  to  the  i)recedence  and  honor  due  to  the  nation  of  which 
he  is  the  ruler.  But  as  sovereigns  and  rulers  s(^ldom  meet  in 
council,  questions  of  this  kind  do  not  often  arise  between   them 


OIL  v.— BIGHTS  OF  EQUALITY.  G3 

individually.  There,  however,  were  no  less  than  five  such 
.congresse.s  between  1814  and  1821,  viz:  the  congress  of  Vienna, 
1815;  of  Aix-la-Chapelle,  1818;  of  Troppau,  1820;  of  Verona, 
1820;  and  of  Laybach,  1821.  As  all  matters  of  etiquette  and 
precedency  in  such  congressois  are  usually  arranged  before  the 
meeting  of  the  sovereigns,  cpicstions  of  precedence  are  not  likely 
to  arise  in  the  congress  itself. 

§  7.  Difficulties  between  ministers.  In  former  times,  when 
piil)lic  juinisters  chilnuHl  to  rej)r('sent,  in  their  own  persons,  the 
dignity  and  right  of  pix^cedence  of  their  respective  states,  nu- 
merous disputes  and  diiliculties  occurred,  some  of  a  serious 
character,  and  otliers  exceedingly  ludicrous.  Thus,  at  the  pub- 
lic entry  of  tlie  Swedish  ambassador  into  London,  a  contest  for 
precedence  took  place  between  the  French  and  Spanish  ambas- 
sadors, wliictli  was  attended  with  loss  of  life  on  both  sides,  and 
probably  would  have  led  to  war,  if  the  king  of  Spain,  who  waH 
interested  in  maintaining  peace  with  France,  had  not  made  such 
concessions  as  to  satisfy  the  pride  of  Louis  XIV.  Again,  the 
ambassadors  of  two  Italian  princes  met  on  the  bridge  at  Prague, 
and  as  neitlier  would  giv(3  way,  tliey  stood  for  the  greater  part 
of  the  day,  face  to  face,  exposed  to  the  jeers  of  the  crowd  col- 
lected by  the  strniigeness  of  the  spectacle. 

§  8.  Royal  honors.  Tlui  customary  law  of  European  nations 
litw  attributed  to  certain  states  what  are  called  royal  honors j 
which  entitle  the  states,  by  whom  they  are  possessed,  to  prece- 
dence over  all  others  who  do  not  enjoy  the  same  rank,  with  the 
exclusive  privilege  of  sending  to  other  states  public  ministers 
of  the  first  rank,  together  with  other  distinctive  titles  and  cere- 
monies. 

§  9.  Emperors  and  kings.  The  title  of  emperor,  from  the 
historical  associations  (;onnc!(it(id  with  it,  was  formerly  considered 
Jis  the  most  eminent  and  honorable  among  all  sovereign  titles; 
but  it  is  not  now  regarded  by  other  crowned  heads  iis  conferring 
any  pnn'ogativc;  or  prec(»dence  over  monarchi(ral  sovereigns  of 
another  nanu',  iMiling  states  of  (Mjiinl    nink   jind   dignity.     The 


64  INTERNATIONAL  LAW  AND  LAWS  OF   WAR, 

title  of  king  is  now  considered  as  equal  in  every  respect  to  that 
of  emperor.  In  fine,  the  influence  and  importance  of  the  sov- 
ereign, result  rather  from  the  rank  and  importance  of  the  state, 
than  from  the  name  and  nature  of  the  title  conferred  upon  its 
ruler. 

§  10.  Monarchical  sovereigns.  Among  monarchical  sovereigns, 
those  who  enjoy  royal  honors,  but  are  not  crowned  heads,  con- 
cede the  preference,  on  all  occasions,  to  emperors  and  kings ;  and 
the  princes  who  do  not  enjoy  royal  honors,  yield  the  precedence 
to  those  who  are  entitled  to  them.  This  rule  is  based  on  the 
consent  of  the  parties  themselves,  and  does  not  extend  to  their 
intercourse  with  other  states. 

§  11.  Semi-sovereign  and  dependent  states.  In  all  matters  of 
ceremony  and  etiquette,  the  representatives  of  semi-sovereign  or 
dependent  monarchical  states  rank  below  the  representatives  of 
sovereign  and  independent  monarchical  states,  and,  of  course,  and 
as  a  matter  of  necessity,  below  those  of  the  state  on  which  they 
are  dependent,  or  whose  protection  or  suzerainete  they  claim  or 
acknowledge. 

§  12.  Republics.  It  will  be  observed  that  these  regulations 
for  determining  the  relative  ranks  of  states,  or  of  their  repre- 
sentatives, established  in  part  by  usage  and  custom,  and  in  part 
by  the  Congress  of  Vienna  in  1815,  relate  exclusively  to  mo- 
narchical sovereigns.  An  abortive  attempt  was  made  at  the  same 
congress,  to  classify  the  different  states  of  Europe,  with  a  view 
to  determine  their  relative  rank.  A  committee  was  appointed 
for  this  purpose  in  December,  1814;  their  report  was  discussed 
in  February,  1815,  and  its  adoption  indefinitely  postponed, 
doubts  having  arisen  with  respect  to  the  proposed  classification, 
and  especially  as  to  the  rank  assigned  to  republics.  It  therefore 
appears  that  republics  have  no  definitive  rank  assigned  to  them 
by  the  rules  of  ceremonial  etiquette  in  Europe,  in  the  inter- 
course of  their  representatives  with  those  of  monarchical  sov- 
ereigns. 

§  13.  General  rule  of  equality  and  precedence.    It   may  be 


J 


CIL  v.— RIGHTS  OF  EQUALITY.  65 

stated,  as  a  general  rule  resulting  from  the  natural  equality  of 
states  as  members  of  an  universal  community,  and  subject  alike 
to  the  same  general  code  of  international  jurisprudence,  that  all 
sovereign  states,  no  matter  what  may  be  their  form  of  gov  tu- 
ment,  are  equal  before  the  law,  and  no  one  can  claim  any  supe- 
riority or  precedence  over  another.  Republics,  therefore,  are 
entitled  to  the  same  rank  as  monarchies,  unless  they  themselvas 
have  yielded  their  natural  right  of  equality  and  conceded  the 
precedence  to  others.  Formerly,  the  Roman  Republic  consid- 
ered all  kings  as  very  far  beneath  it ;  but  when  the  monarchs 
of  Europe  found  none  but  feeble  republics  to  oppose,  they  dis- 
dained to  admit  them  to  an  equality.  Nevertheless,  the  powerful 
Republics  of  Venice  and  of  the  United  Provinces  assumed  the 
honors  of  crowned  heads.  Cromwell  would  not  allow  the 
slightest  mark  of  honor  which  had  been  paid  to  the  representa- 
tives of  the  monarchy  to  be  omitted  toward  those  of  the 
Republic  of  England.  In  the  treaties  between  the  French 
Republic  and  the  other  European  Powers,  it  was  expressly 
stipulated  that  the  same  ceremonials,  as  to  rank  and  etiquette, 
which  had  been  observed  before  the  revolution  of  1789,  should 
be  continued  between  them.  The  states  of  Europe  observed  the 
same  rule  toward  the  recent  Republic  of  France.  The  United 
States  of  North  America,  the  Germanic  Confederation,  and 
Switzerland  (collectively,  not  in  its  individual  cantons,)  have 
been  considered  as  entitled  to  the  same  rank  as  the  monarchical 
states  of  Europe. 

§  14.  Usage  of  the  Alternat.  Where  the  rank  of  different 
states  is  equal  or  undetermined,  resort  has  sometimes  been  had 
to  the  usage  of  the  alternate  as  it  is  called,  by  .which  the  rank 
and  places  of  diiferent  powers  is  changed  from  time  to  time, 
either  in  a  certain  regular  order,  or  one  determined  by  lot. 
Thus,  in  drawing  up  public  treaties  and  conventions,  it  is  the 
usage  of  certain  powers  to  alternate,  both  in  the  preamble  and 
the  signatures,  so  that  each  power  occupies,  in  the  copy  intended 
to  be  delivered  to  it,  the  first  place.     Another  expedient,  some- 

6*  I 


66  INTERNA  TIONAL   LA  W  AND  LA  WS  OF   WAR. 

times  resorted  to  in  order  to  avoid  controversies  respecting  the 
order  of  signatures  to  treaties  and  other  public  acts,  is  that  of 
signing,  in  the  alphabetical  order  of  the  names  of  the  respective 
states  which  are  parties  to  these  acts,  the  French  alphabet  being 
adopted  for  that  purpose.  Thus,  at  the  congress  of  Vienna,  in 
1815,  the  plenipotentiaries  signed  in  the  following  order: 
Austria,  Denmark,  Espagne  (Spain,)  France,  Great  Britain, 
Prussia,  Russia,  Sweden ;  but  it  was  distinctly  understood,  at 
the  time,  that  this  practice  was  not  to  be  taken  as  derogating 
from  the  ancient  usage  of  the  alteniat. 

§  15.  Diplomatic  language.  At  one  time  the  Latin  language 
was  used  as  a  matter  of  general  convenience  in  the  diplomatic 
intercourse  between  the  different  nations  of  Europe.  Toward 
the  end  of  the  fifteenth  century,  the  preponderance  of  Spain 
contributed  to  the  general  diffusion  of  the  Castilian  tongue  as 
the  ordinary  medium  of  political  correspondence.  This,  again, 
in  the  age  of  Louis  XI Y.,  was  superseded  by  the  French  lan- 
guage, which  became  the  almost  universal  diplomatic  idiom  of 
the  civilized  world.  The  primitive  equality  of  states  authorized 
each  nation  to  make  use  of  its  own  language  in  treating  with 
others,  and  this  right  is  still  preserved  in  the  practice  of  many 
states;  each  carrying  on  its  diplomatic  correspondence  in  its 
o^vn  language,  and  treaties  between  them  being  written  in  their 
respective  languages  in  parallel  columns.  Where  the  states 
which  enter  into  negotiation  or  treaty  have  a  common  language, 
they  generally  make  use  of  it  in  their  transactions  with  each 
other. 

§  16.  Militaiy  and  maritime  ceremonial.  The  usage  of  nations 
has  established  certain  military  and  maritime  ceremonials  to  be 
observed,  either  on  the  ocean  between  ships,  or  in  ports  between 
ships,  and  between  ships  and  forts,  or  on  land  between  armies, 
forts,  military  and  naval  officers,  and  in  the  military  honors  t( 
be  paid  to  high  civil  officers.  Among  these  is  the  salute  bj 
striking  the  flag,  or  the  sails,  or  by  firing  a  certain  number  oi 
guns,  ( tc.     These  are  matters  of,  perhaps,  trivial  importance  ii 


CH,  v.— RIGHTS  OF  EQUALITY.  67 

themselves,  but  their  due  observance  facilitates  the  amicable  in- 
tercourse of  nations,  and  their  neglect  frequently  leads  to  inter- 
national differences,  dissensions  and  enmities,  which  have  some- 
times terminated  in  long  and  bloody  wars. 

§  17.  How  regulated.  Every  sovereign  state  has  the  exclusive 
right,  in  virtue  of  its  independence  and  equality,  to  regulate  the 
ceremonies  to  be  observed  within  its  own  territorial  jurisdiction. 
This  extends  to  the  ceremonials  between  its  own  ships  on  the 
high  seas,  and  to  the  honors  to  be  rendered  by  them  to  foreign 
ships  on  the  high  seas,  and  to  ships  and  to  fortresses  in  foreign 
ports.  Regulations  for  determining  these  ceremonies,  and  the 
reciprocal  honors  to  be  rendered  by  one  nation  to  another,  are 
established  by  municipal  ordinances,  by  usage,  and  by  the  stipu- 
lations of  treaties. 

§  18.  In  the  narrow  seas.  Questions  of  territorial  jurisdic- 
tion, or  dominion  over  the  narrow  seas,  have  not  unfrequently 
given  rise  to  contentions  with  respect  to  the  maritime  honors  to 
be  rendered  to  the  flag  of  the  state  claiming  such  dominion,  by 
the  vessels  of  others  who  denied  its  pretensions  to  such  su- 
premacy. This  kind  of  supremacy  was  claimed  by  Great 
Britain  over  the  narrow  seas,  and  by  Denmark  over  the  sound 
and  Belts  at  the  entrance  of  the  Baltic  Sea,  and  serious  inter- 
national difficulties  resulted  in  former  times  with  respect  to  the 
formalities  and  maritime  honors  required  by  these  states,  and 
the  nea:lect  or  refusal  of  others  to  observe  or  render  them. 
But  these  peculiar  formalities,  formerly  required  by  particular 
places  where  their  dominion  was  disputed,  are  now,  either 
entirely  suppressed,  or  modified  and  regulated  by  treaty  stipula- 
tions. 

§  19.  In  foreign  ports  and  on  the  high  seas.  Not  only  in  the 
narrow  seas,  but  also  upon  the  ocean,  when  the  ships  of  different 
nations  happened  to  meet,  serious  questions  sometimes  arose 
with  respect  to  the  time  and  character  of  reciprocal  salutes. 
Ortolan  has  given  us  numerous  instances  of  these  difficulties 
and  disputes,  which  not  unfrequently  terminated  in  actual  war. 


68  INTERNATIONAL  LAW  AND  LAWS  OF  WAB. 

As  the  lowering  of  the  flag  was  considered  an  act  of  humilia- 
tion the  custom  was  entirely  dispensed  with  about  the  middle 
of  the  eighteenth  century,  and  salutes  were  confined  to  the  firing 
of  cannon.  Nevertheless,  the  vessels  of  the  great  powers  for  a 
long  time  refused  to  salute  those  of  the  smaller  states,  and 
those  of  crowned-heads,  on  entering  ports  and  harbors  of  repub- 
lics, required  the  forts  of  the  latter,  (contrary  to  ordinary  rule,) 
to  salute  first. 

§  20.  Treaty  regulations.  Since  the  beginning  of  the  eigh-. 
teenth  century  there  have  been  a  number  of  treaties  regulating 
matters  of  ceremonial  between  the  contracting  parties.  But  as 
these  regulations  varied  in  the  different  treaties,  publicists  have 
discussed  the  character  and  object  of  these  usages,  and  sought  to 
deduce  from  reason  certain  general  principles  which  should  form 
the  basis  of  all  internal  regulations,  and,  by  thus  establishing  a 
uniform  system,  remove  all  cause  of  difficulty  or  dispute. 

§  21.  General  rules  of  text-writers.  The  following  general 
rules  are  collected  from  the  best  authorities  on  international 
jurisprudence : 

As  already  stated,  the  method  of  saluting  by  striking  or  furl- 
ing the  flag,  is  now  entirely  abandoned  between  ships  of  war, 
although  merchant  vessels,  as  a  mark  of  deference,  sometimes 
salute  in  this  way  the  men-of-war  of  their  own  state.  But 
Ortolan  considers  even  this  as  an  objectionable  practice,  because 
the  national  flag  should  be  considered  as  a  sacred  emblem,  and 
should  never  be  lowered  voluntarily,  not  even  through  deference 
and  as  a  matter  of  politeness.  A  salute  by  lowering  the  sails 
is  more  suitable  and  much  less  objectionable ;  it  is  sometimes 
used  by  merchant  vessels.  Merchant  vessels  of  diflerent  nations, 
meeting  on  the  high  seas,  or  in  port,  do  not,  as  a  general  rule, 
salute  each  other ;  sometimes,  however,  they  exchange  compli- 
ments by  lowering  their  national  flags.  This,  for  the  reasoi 
given  above,  is  by  some  regarded  as  an  objectionable  practic 
Such  salutations  should  be  confined  to  private  signals,  or  to 
sails. 


CH,  V,— RIGHTS  OF  EQUALITY.  69 

All  sovereign  states  are,  with  respect  to  salutes,  to  be  regarded 
as  equal ;  and  any  inequality  of  salutes,  in  respect  to  time,  place, 
form,  or  number  of  guns,  is  to  be  regarded  as  resulting  from 
general  agreement,  or  of  individual  rank  of  the  parties  saluting, 
and  not  as  conveying  any  idea  of  domination  or  supremacy. 
Salutes  are  never,  in  the  absence  of  treaty  stipulations,  to  be 
regarded  as  obligatory,  but  as  a  matter  of  courtesy  and  etiquette. 
To  refuse  an  exchange  of  salutes  is  therefore  regarded  as 
evidence  of  a  want  of  friendship  and  good  will,  which  justifies 
the  other  party  in  asking  explanations ;  but  it  cannot  in  itself  be 
considered  an  oifense  or  an  insult,  sufficient  to  justify  hostilities. 

Where  two  ships  of  war  meet  upon  the  high  seas,  courtesy 
requires  that  the  commanding  officer  lowest  in  rank  shall  salute 
first,  and  that  the  salute  be  returned,  gun  for  gun.  The  same 
rule  holds  with  respect  to  the  flag-ships  of  squadrons ;  but  a 
single  ship,  no  matter  what  its  rank,  meeting  a  squadron,  salutes 
first.  Vessels  carrying  sovereigns,  members  of  royal  families, 
rulers  of  states,  and  ambassadors,  are  to  be  saluted  first.  As 
before  remarked,  only  personal  salutes  can  be  returned  by  a  less 
number  of  guns. 

§  22.  Salutes  between  ships  and  forts.  Vessels  of  war,  in 
entering  or  leaving  foreign  ports,  or  in  passing  foreign  forts, 
batteries,  or  garrisons,  salute  first,  without  reference  to  the  rela- 
tive rank  of  the  officers  of  the  ships  and  forts.  Such  salutes  are 
always  to  be  returned  gun  for  gun.  As  messages  are  to  be  ex- 
changed between  the  parties,  with  respect  to  the  number  of  guns 
to  be  given  and  returned,  such  salutes  are  usually  fired  after  the 
vessel  comes  to  anchor,  and  before  leaving  her  anchorage  on  her 
departure.  This  salute  is  a  compliment  to  the  flag,  and,  conse- 
quently, is  considered  international  rather  than  personal.  The 
same  rule  holds  with  respect  to  the  interchange  of  compliments 
and  visits  with  the  authorities  on  shore ;  the  compliment  or 
visit  being  first  made  from  the  vessel,  without  regard  to  relative 
rank,  even  if  it  were  possible  to  fix  any  relative  rank  for  officei-s 
so  different  in  their  nature  and  character.     The  rule,  making 


70  INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

such  compliments  international,  avoids  any  necessity  of  attempt- 
ing such  assimilation. 

An  apparent  exception  is  made  to  this  rule,  in  the  case  of 
vessels  carrying  persons  of  sovereign  rank,  members  of  the 
royal  family,  or  ambassadors  representing  sovereigns  or 
sovereign  states.  In  such  cases,  the  forts,  batteries  and  garri- 
sons, always  salute  first.  But  such  salutes  are  intended  expressly 
for  the  persons  carried,  and  not  for  the  vessel  carrying  them, 
and,  consequently,  the  vessel  does  not  return  the  salute.  It  is 
customary,  however,  for  such  vessel,  if  foreign,  to  afterward 
salute  the  fort  or  garrison  in  the  usual  manner,  which  salute  is, 
of  course,  to  be  returned  gun  for  gun.  Ambassadors  visiting 
foreign  ports,  not  the  capital  or  seat  of  the  court  of  a  sovereign 
or  a  sovereign  state,  first  receive  the  visits  and  compliments  of 
the  local  authorities.  This  rule  of  courtesy  results  from  their 
supposed  representative  character.  The  rules  of  etiquette  to  be 
observed  with  respect  to-  ambassadors  at  foreign  courts,  are 
discussed  in  another  chapter.  Where  vessels  of  war,  in  foreign 
ports,  land  or  receive  on  board  their  own  sovereigns,  or  officers 
of  their  own  government,  the  salutes  to  be  given  and  ceremo- 
nies to  be  observed,  are  to  be  determined  by  their  own  laws 
and  regulations.  The  same  remark  applies  to  the  compliments 
to  be  paid  on  such  occasions  by  other  ships  in  port,  and  by  the 
military  establishments  on  shore,  each  being  governed  by  their 
own  laws  and  regulations.  Every  country  determines  for  itself 
the  salutes  to  be  paid  to  its  own  authorities,  and  it  will  hardly 
be  expected  that  any  higher  compliment  will  be  paid  to  those 
of  other  countries,  of  the  same  rank.  All  such  matters,  how- 
ever, should  be  regulated  by  previous  arrangement,  and  in  case 
of  diiferences  which  cannot  be  accommodated,  the  party  dis- 
senting will  take  no  part  in  the  ceremonies. 

§  23.  Ships  in  foreign  ports.  Ships  of  war  of  diifereni 
countries,  meeting  in  port,  exchange  salutes,  gun  for  gun,  th^ 
officer  of  the  lowest  rank  always  saluting  first,  except  in  th^ 
case  where  a  single  ship  meets  a  squadron  or  fleet,  in  whicl 


CH.  v.— RIGHTS  OF  EQUALITY,  71 

event,  the  flag  ship  is  first  saluted  without  regard  to  the  relative 
rank  of  the  officers.  In  all  other  cases,  where  the  officers  are 
of  equal  grade,  the  last  arrival  salutes  first.  Salutes  are  not  to 
be  exchanged  where  the  regulations  of  the  place  do  not  permit 
them.  With  respect  to  the  ceremony  of  visit,  courtesy  requires 
that  the  commander  of  the  vessel  in  port,  shall  first  send  a 
message  of  compliment  and  inquiry  to  the  commander  of  a 
vessel  coming  into  port,  and  such  message  of  compliment  is  to 
be  immediately  returned  by  the  new  comer ;  after  which  the 
visits  of  ceremony  are  to  be  exchanged,  the  lowest  in  rank 
visiting  first.  The  number  of  guns  to  be  fired  in  a  salute  is 
usually  determined  by  the  laws  and  regulations  governing 
the  party  which  salutes  first,  but  before  making  the  salute,  it  is 
proper  to  ascertain  whether  it  will  be  returned  gun  for  gun. 

Vessels  of  war  in  foreign  ports  celebrate  their  own  f  ^tes  ac- 
cording to  the  regulation  of  their  own  government.  Courtesy 
also  requires  them  to  take  part  in  the  national  f  ^tes  of  the  place, 
by  joining  in  the  public  demonstrations  of  joy  or  grief.  The 
same  mark  of  respect  is  shown  to  vessels  of  a  third  power 
which  celebrate  fetes  in  foreign  ports.  But  if  such  celebrations 
are  of  a  character  to  offend  or  wound  the  feelings  of  their  own 
countrymen,  or  the  nation  in  whose  waters  they  are  anchored, — 
as  public  rejoicings  for  a  victory  gained, — ships  of  war  will 
remain  as  silent  spectators,  or  leave  the  ports,  according  to  the 
circumstances  of  the  case.  In  public  ceremonies  upon  land,  the 
commandants  of  vessels  or  fleets  usually  land  with  the  officers 
of  their  staff,  and  receive  a  place  of  honor  according  to  the 
hierarchy  of  rank,  precedence  being  determined  by  grade,  and, 
if  equal,  by  date  of  arrival.  In  case  of  disputes  as  to  rank,  it 
is  proper  for  the  contestants  to  withdraw  and  become  mere 
spectators  of  the  ceremonies. 

§  24.  Regulations  of  U.  S.  Army  and  Navy.  The  military 
regulations  for  the  government  of  the  army  of  the  United 
States,  determine  with  great  minuteness  the  salutes  and  military 
honors  to  be  paid  by  troops  and  forts  to  our  civil,  militaiy,  and 


72  INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

naval  officers,  according  to  the  rank  of  each.  Thus,  a  national 
salute  is  determined  by  the  number  of  states  composing  the 
Union,  at  the  rate  of  one  gun  for  each  state.  The  President  of 
the  United  States  alone,  is  to  receive  a  salute  of  twenty-one 
guns ;  the  Vice  President,  seventeen  guns ;  the  heads  of  the 
executive  departments  of  the  federal  Government,  the  com- 
manding general  of  the  army,  and  the  governors  of  gtates 
and  territories,  within  their  respective  jurisdictions,  fifteen 
guns ;  major-generals,  and  ministers  to  foreign  states,  thirteen 
guns;  brigadier-generals,  eleven  guns;  and  officers  of  the  navy, 
according  to  their  relative  rank  with  officers  of  the  army. 
The  President  and  Vice  President  of  the  United  States,  are  to 
be  received  by  troops  with  standards  and  colors  dropping, 
officers  saluting,  drums  beating,  and  trumpets  sounding.  The 
compliments  of  other  officers  of  government  are  varied  accord- 
ing to  the  rank  of  each.  Foreign  officers,  whether  civil, 
military,  or  naval,  when  invited  to  visit  a  military  post  or 
national  vessel,  are  to  be  saluted  according  to  their  rank,  and  to 
receive  the  same  honors  as  officers  of  the  United  States  of 
the  rank  which  corresponds.  Thus,  a  foreign  sovereign  prince 
receives  the  same  honors  as  the  President  of  the  United  States ; 
foreign  ambassadors  and  ministers,  the  same  as  American 
envoys  of  corresponding  rank  to  foreign  courts,  etc.  Foreign 
ships  of  war,  entering  American  ports,  are  saluted  from 
fortifications  in  return  for  a  similar  compliment,  gun  for 
gun,  on  notice  being  officially  received  of  such  intended  salute.^ 
It  is  usual  to  agree  beforehand  what  number  of  guns  are  to 
fired,  and  it  is  directed  that  in  no  case  shall  the  compliment 
exceed  the  national  salute.  Similar  rules  are  established  for  th< 
navy  of  the  United  states,  with  respect  to  salutes  to  be  given 
our  own  and  foreign  officers.  American  ships  of  war,  ( 
visiting  foreign  ports,  salute  fortifications  on  receiving  noti( 
that  the  compliment  will  be  returned,  gun  for  gun.  Our  shi] 
salute  each  other  and  foreign  ships,  according  to  the  rank  oi 
their  respective  commanders. 


CHAPTER  VI. 

RIGHTS  OF  PROPERTY  AND  OF  DOMAIN. 

§  1.  Sovereignty  of  a  state.  The  sovereignty  of  a  state  is  the 
collection  of  the  wills  and  powers  of  all  the  individual  mem- 
bers of  which  the  state  is  composed;  or,  in  other  words,  it  is 
the  public  power  and  authority  of  the  state ;  and  the  sovereign 
is  the  person,  or  body  of  persons,  who  are  invested  with  that 
power  or  authority. 

§  2.  Prerogative.  The  term  prerogative  is  frequently  used  to 
express  the  uncontrolled  will  of  the  sovereign  power  in  the 
state.  It  is  applied  not  only  to  the  king,  but  also  to  the  legis- 
lative and  judicial  branches  of  a  government,  as  the  "  royal 
prerogatives,"  the  "prerogatives  of  parliament,''  the  "preroga- 
tives of  the  court,"  etc.  Rutherforth  says,  prerogative  simply 
means  a  power  or  will  which  is  discretionary,  and  above  and 
uncontrolled  by  any  other  will,  and,  that  if  this  power  be  lim- 
ited in  any  respect,  so  far  the  prerogative  is  at  an  end. 

§  3.  Jura  majestatis  and  regalia.  The  word  majestas  was  used 
by  the  Romans  to  express  the  supreme  dignity  of  the  common- 
wealth, and  hence  majestas^  as  employed  by  the  civilians,  is  a 
legal  term  signifying  the  sovereign  dignity  of  the  state ;  and  the 
different  powers  of  the  state,  or  parts  of  sovereign  power,  are 
called  by  them  jura  majestatis.  They  very  properly  distinguish 
between  things,  and  rights  to  things,  the  former  being  called 
corpora,  and  the  latter  jura.  The  term  regalia,  differs  from 
sovereignty,  or  jura  majestatis,  as  being  applicable  both  to 
things  and  to  rights  to  things, — corpora,  and  jura, — and,  also, 
as  not  being  inherent  to  or  inseparable  from  the  sovereign  power, 
7  K  73 


74  INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

for  regalia  may  be  alienated,  either  with  or  without  the  consent 
of  parliament.  It  may  be  applied  to  the  rights  and  preroga- 
tives, not  only  of  the  king,  but  also  of  the  church,  the  treasury, 
the  courts,  and  parliament,  and  also  to  property  of  the  state, 
of  the  church,  etc.  And  when  applied  to  property,  it  may  in- 
clude both  that  which  necessarily  appertains  to  the  crown,  and 
that  which  is  alienable,  or  which  may  be  passed  to  individual 
subjects. 

§  4.  Property  and  domain.  By  the  term  property,  we  under- 
stand the  ownership  of  a  thing,  or  the  exclusive  right  of  pos- 
sessing, enjoying  and  disposing  of  it.  Things  owned  by  indi- 
viduals, or  corporate  bodies,  are  termed  private  property,  and 
those  owned  by  the  state  are  called  public  property,  or  the  pro- 
perty of  the  state.  The  property  of  a  state  is  therefore  very 
different  from  its  sovereignty,  or  the  prerogatives  of  its  ruler. 
In  speaking  of  real  property,  whether  of  individuals  or  of  states, 
the  term  domain  is  frequently  used. 

§  5.  Right  of  eminent  domain.  Eminent  domain  is  a  term 
applied  to  one  of  the  jura  majestatis;  it  is  that  highest  right 
over  property  which  is  in  the  government,  and  is  never  granted 
to  the  individual,  and,  therefore,  is  essentially  different  from 
what  is  ordinarily  understood  by  the  word  property.  The  term 
eminent  domain,  properly  speaking,  is  not  applicable  to  the  pro- 
perty of  the  state,  but  only  to  the  property  of  individuals,  for 
the  right  of  the  state  to  dispose  of  its  property  results  from  its 
right  of  ownership,  and  not  from  the  right  of  eminent  domain, 
which  latter  right  remains  in  the  state  after  it  has  transferred 
the  ownership  of  its  property.  It  is  a  right  which,  from  its 
very  nature,  is  inseparable  from  the  sovereignty,  and  is  neces- 
sarily transferred  with  the  sovereignty. 

§  6.  Right  of  a  state  to  own  property.    A  state  is  regarded  in 
public  law  as  capable  of  the  same  rights,  duties  and  obligations^ 
with  respect  to  other  states,  as  individuals  with  respect  to  othei 
individuals.    Among  the  most  important  of  these  natural  righl 
is  that  of  acquiring,  possessing  and  enjoying  property.     Th< 


CH.  VL— PROPERTY  AND  DOMAIN.  75 

property  of  a  state,  of  whatsoever  description,  is  marked  by  the 
same  characteristics  relatively  to  other  states,  as  the  property  of 
individuals:  that  is  to  say,»"it  is  exclusive  of  foreign  interfer- 
ence, and  susceptible  of  free  disposition/^ 

§  7.  Modes  of  acquisition.  A  state  may  acquire  property  or 
domain  in  various  ways ;  its  title  may  be  acquired  originally  by 
mere  occupancy,  and  confirmed  by  the  presumption  arising  from 
the  lapse  of  time ;  or  by  discovery  and  lawful  possession ;  or  by 
conquest,  confirmed  by  treaty  or  tacit  consent;  or  by  grant, 
cession,  purchase,  or  exchange ;  in  fine,  by  any  of  the  recognized 
modes  by  which  private  property  is  acquired  by  individuals. 

§  8.  Right  of  disposition  of  territory.  A  sovereign  state  has 
the  same  absolute  right  to  dispose  of  its  territorial  or  other 
public  proj)erty,  as  it  has  to  acquire  such  property,  but  it 
depends  upon  its  own  municipal  constitution  and  laws,  how,  and 
by  what  department  of  its  government,  the  disposition  shall  be 
made.  This  is  sometimes  a  question  of  peculiar  interest  to 
foreign  states,  who  may  acquire  such  property  by  purchase,  ex- 
change, cession,  conquest,  and  treaties  of  confirmation,  and 
especially  where  such  acquisitions  are  made  from  a  state  con- 
tinually subject  to  revolutions  and  fluctuations  in  the  character 
of  its  government  and  in  the  powers  of  its  rulers.  The  act  of 
a  government  de  facto ,  a  government  which  is  submitted  to  by 
the  great  body  of  the  people,  and  recognized  by  other  states,  is 
binding  as  the  act  of  the  state ;  and  it  is  not  necessary  for 
others  to  examine  into  the  origin,  nature  and  limits  of  that  au- 
thority. If  it  is  an  authority  de  facto ^  and  sufficient  for  the 
purpose,  others  will  not  inquire  how  that  authority  was  obtained. 

§  9.  Authority  to  make  a  valid  transfer.  Nevertheless,  in 
order  to  make  such  transfer  valid,  the  authority,  whether  de 
facto  or  dejure,  must  be  competent  to  bind  the  state.  Hence 
the  necessity  of  examining  into  and  ascertaining  the  powers  of 
the  rulers,  as  the  municipal  constitutions  of  different  states 
throw  many  difficulties  in  the  way  of  alienations  of  their  public 
property,  and  particularly  of  their  territory.     In  some  this  au- 


76  INTERNATIONAL    LAW   AND  LAWS  OF   WAR. 

thority  is  conferred  upon  the  executive  branch  of  the  govern- 
ment, while  in  others  the  concurrence  of  the  legislative  branch 
is  requisite  to  make  valid  the  trans:fer  of  public  property. 

§  10.  Patrimonial  kingdoms.  Formerly  what  Grotius  calls 
patrimonial  kingdoms  were  considered  in  the  light  of  absolute 
property  of  particular  families,  who  transferred  them  to  others 
at  their  will,  sometimes  by  way  of  mortgage,  and  sometimes  by 
deeds  of  gift  and  by  bequests.  The  transfer  of  Schleswig-Hol- 
stein  to  Denmark  is  a  modern  instance  of  this  kind  of  sale. 

'§11.  Inhabitants  of  such  kingdoms.  As  the  inhabitants  of 
such  kingdoms  had  by  their  blind  submission  to  their  rulers 
become  mere  adjuncts  of  the  soil,  the  transfer  of  the  sovereignty 
was  considered  to  include,  not  only  the  right  of  eminent  domain, 
and  the  absolute  property  of  the  sovereign  or  state,  but  all  pri- 
vate lands,  and  the  property  and  services  of  the  subjects,  who 
were  transferred  with  the  soil,  in  the  same  manner  as  a  slave- 
holder may  transfer  his  slaves  and  all  they  possess,  together  with 
the  title  to  his  plantation. 

§  12.  Modem  transfers.  But  in  modern  times  sales  and  trans- 
fers of  national  territory  to  another  power  can  only  be  made  by 
treaty  or  some  solemn  act  of  the  sovereign  authority  of  the  state. 
And  such  transfers  of  territory  do  not  include  the  allegiance  of 
its  inhabitants  without  their  consent,  express  or  implied,  and  a 
change  of  sovereignty  does  not  involve  any  change  in  the 
ownership  of  private  property.  The  new  sovereignty,  however, 
acquires  the  same  right  of  eminent  domain  as  that  held  by  the 
former. 

§  13.  Extent  of  maritime  territory.  National  territory  con- 
sists of  water  as  well  as  land.  The  maritime  territory  of  every 
state  extends  to  the  ports,  harbors,  bays,  mouths  of  rivers,  and 
adjacent  parts  of  the  sea  enclosed  by  headlands  belonging  to  the 
same  state.  Within  these  limits,  its  rights  of  property  and 
territorial  jurisdiction  are  absolute,  and  exclude  those  of  every 
other  state.  The  general  usage  of  nations  superadds  to  this 
extent  of  maritime  territory  an  exclusive  territorial  jurisdiction 


en.  VL— PROPERTY  AND  DOMAIN.  Y7 

over  the  sea  for  the  distance  of  one  marine  league,  or  the  range 
of  a  cannon-shot,  along  all  the  shores  or  coasts  of  the  state. 
The  maxim  of  law  on  this  subject,  is,  terros,  dominium  finitur 
uhi  jinitur  armorum  vis,  which  is  usually  recognized  to  be  about 
three  miles  from  the  shore.  And,  even  beyond  this  limit,  states 
may  eitercise  a  qualified  jurisdiction  for  fiscal  and  defensive 
purposes,  that  is,  for  the  execution  of  their  revenue  laws,  and  to 
prevent  "  hovering  on  their  coasts^"  It  is  necessary  to  distin- 
guish between  maritime  territory  and  territorial  jurisdlctiorij 
which  latter  will  be  discussed  in  another  chapter. 

§  14.  Coasts  and  shores.  The  term  "  coasts'^  does  not  properly 
comprehend  all  the  sJioals  which  form  sunken  continuations  of 
the  land  perpetually  covered  with  water,  but  it  includes  all  the 
natural  appendages  of  the  territory  which  rise  out  of  the  water, 
although  they  may  not  be  of  sufficient  firmness  for  habitation 
or  use.  No  matter  whether  such  appendages  are  composed  of 
mud  or  of  solid  rock,  they  are  considered  as  a  part  of  the  terri- 
tory of  the  main  land,  the  right  of  dominion  not  depending 
upon  the  texture  of  the  soil. 

§  15.  Islands.  Another  case,  involving  the  international 
right  of  domain  and  property,  is  that  of  islands  in  the  sea, 
which  do  not  derive  their  elements,  on  the  principle  of  alluvium 
and  increment,  immediately  from  the  main  shore,  but  are 
separated  from  it  by  deep  channels  of  a  greater  or  less  width. 
Such  islands,  if  in  the  vicinity  of  the  main  land,  are  regarded 
as  its  dependencies,  unless  some  one  else  has  acquired  title 
to  them  by  virtue  of  discovery,  colonization,  purchase,  conquest, 
or  some  other  recognized  mode  of  territorial  acquisition.  The 
ownership  and  occupation  of  the  main  land  includes  the  adja- 
cent islands,  even  though  no  positive  acts  of  ownership  may 
have  been  exercised  over  them.  In  such  a  case,  the  attempt  of 
another  power,  without  title,  to  colonize  them,  would  be  a  just 
cause  of  complaint,  and,  if  persisted  in,  of  war.  But  if  such 
islands  be  in  the  sea,  distant  from  the  main  land,  their  owner- 
7* 


78  INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

ship  follows  the  general  rule  of  discovery,  occupancy,  coloniza- 
tion, purchase,  and  conquest. 

§  16.  Principle  of  the  king's  chambers.  The  exclusive  right 
of  domain,  and  territorial  jurisdiction,  of  the  British  crown, 
have  immemorially  extended  to  the  bays  or  portions  of  the  sea 
cut  oif  by  lines  drawn  from  one  promontory  to  another,  along 
the  coasts  of  the  island  of  Great  Britain.  They  are  commonly 
called  the  hinges  chambers.  A  similar  jurisdiction,  or  right  of 
domain,  is  also  asserted  by  the  United  States  over  the  Delaware 
Bay,  and  other  bays  and  estuaries,  as  forming  portions  of  their 
territory.  Other  nations  have  claimed  a  right  of  territory  over 
bays,  gulfs,  straits,  mouths  of  rivers,  and  estuaries  which  are 
enclosed  by  capes  and  headlands  along  theii*  respective  coasts, 
and  the  principle  would  seem  to  be  pretty  well  established  as  a 
mile  of  international  law. 

§  17.  Difficulties  in  its  application.  The  principle  of  this  rule 
is  not  now  contested,  but  differences  have  arisen  with  respect  to 
its  limitation,  and  its  application  to  particular  cases,  or,  in  other 
words,  as  to  what  constitutes  a  bay  or  estuary,  or  mouth  of  a 
river,  and  what  must  be  regarded  as  a  portion  of  the  open  sea, 
which  is  the  property  or  territory  of  no  one,  but  is  common  to 
all  nations.  By  the  treaty  of  1818,  between  the  United  States 
and  Great  Britain,  the  former  "  renounced  forever  any  liberty 
heretofore  enjoyed,  or  claimed  by  the  inhabitants  thereof,  to 
take,  dry,  or  cure  fish  on,  or  within  three  miles  of  any  of  the 
coasts,  bays,  creeks,  or  harbors  of  his  Britannic  Majesty's  domin- 
ions in  America,^'  etc.  From  1849  to  1852,  serious  difficulties 
occurred  between  the  inhabitants  of  the  two  countries  with 
respect  to  the  construction  of  this  treaty ;  the  one  contending 
that  the  three  miles  were  to  be  measured  from  a  line  uniting  the 
extreme  headlands  of  the  coasts  of  Nova  Scotia,  while  the  other 
party  objected  to  this,  on  the  ground  that  the  line  so  drawn  cut 
off  large  portions  of  the  open  sea,  or  broad  estuaries,  which  were 
the  common  property  of  all;  and  that  such  line  must  be  drawn 
from  one  headland  to  the  next  adjacent,  so  as  not  to  include 


Cff.  VL— PROPERTY  AND  DOMAIN.  79 

these  broad  bays,  or  slight  indentations,  which  were  properly 
portions  of  the  open  sea.  Serious  collisions  were  at  one  time 
apprehended  between  the  men-of-war  sent  by  the  two  govern- 
ments to  protect  their  respective  fisheries. 

§  18.  Claims  to  portions  of  the  sea.  But,  besides  this  claim 
of  maritime  territory  over  the  mouths  of  rivers,  bays  and  es- 
tuaries along  the  coast,  diiferent  nations  have  at  different  times 
asserted  a  right  of  property  to  certain  narrow  seas  and  straits 
adjacent  to  their  shores,  and  outside  of  any  lines  joining  one 
cape  or  promontory  with  another.  Such,  for  example,  as  the 
sovereignty  formerly  claimed  by  the  Republic  of  Venice  over 
the  Adriatic;  the  supremacy  claimed  by  England  over  the  nar- 
row seas ;  and  the  supremacy  asserted  by  the  king  of  Denmark 
over  the  sound  and  the  two  belts  which  form  the  outlet  of  the 
Baltic  Sea  into  the  ocean.  Such  claims  have  generally  been 
placed  on  the  ground  of  immemorial  use,  or  prescription.  The 
honors  and  duties  demanded  by  the  state  asserting  such  mari- 
time supremacy,  have  been  paid  or  refused  by  other  nations, 
according  to  circumstances,  but  the  claim  itself  has  never  been 
sanctioned  by  general  acquiescence. 

§  19.  Danish  sound  dues.  The  claim  of  Denmark,  to  impose 
what  are  called  sound  dues,  was  rested  by  the  Danish  publicists 
and  diplomatists,  not  only  upon  immemorial  prescription,  sanc- 
tioned by  a  long  succession  of  treaties  with  other  powers,  but 
upon  a  kind  of  vested  right,  originating  in  remote  antiquity, 
recognized  by  the  system  of  public  law  subsequently  subsisting, 
and  ratified  by  the  acquiescence  of  all  maritime  nations  from 
time  immemorial;  and  they  said  the  claim  was  originally 
founded  in  equity,  and  still  has  equitable  considerations  in  its 
favor,  in  virtue  of  the  expenses  incurred  by  Denmark  in  im- 
proving the  navigation  of  the  sound  for  the  general  benefit  of 
commerce.  They  admitted  "that  the  general  principles  of  the 
law  of  nations  would  now  hardly  seem  to  sanction  the  impo- 
sition of  tolls  similar  to  the  sound  dues,  where  none  before  had 
existed."     The  United  States  denied  the  right  of  Denmark  to 


80  INTERNATIONAL    LAW  AND  LAWS  OF  WAR. 

collect  such  dues.  The  dispute  was  amicably  arranged  by  the 
convention  of  February  12th,  1858,  the  sound  and  belts  being 
made  entirely  free  to  American  vessels  and  their  cargoes,  the 
United  States  paying  a  fixed  sum  en  bloc  for  light-houses, 
buoys,  etc. 

§  20.  Mare-clausum  and  mare-librum.  No  one  would  noAv  think 
of  reviving  the  controversy  which  once  occupied  the  pens  of 
the  ablest  European  jurists,  with  respect  to  the  right  of  any  one 
state  to  appropriate  to  its  own  use,  and  to  the  exclusion  of 
others,  any  part  of  open  sea  or  main  ocean,  beyond  the  imme- 
diate vicinity  of  its  own  coast;  but  it  has  sometimes  been  at- 
tempted to  extend  the  principle  of  mare-clan^mn  to  inland  seas, 
not  entirely  enclosed  within  the  territorial  limits  of  a  single 
state.  It  is  now  a  settled  principle  of  international  law  that 
no  number  of  nations,  bordering  upon  the  sea  can  combine  to- 
gether to  close  it  against  -the  commerce  of  the  rest  of  the 
world. 

§  21.  The  Black  Sea.  It  is  generally  admitted  that  the  terri- 
tory of  a  state  includes  the  seas,  lakes  and  rivers  entirely  in- 
closed within  its  limits.  Thus,  so  long  as  the  shores  of  the 
Black  Sea  were  exclusively  possessed  by  Turkey,  that  sea  might, 
with  propriety,  be  considered  as  mare-clausum;  and  there  seemed 
no  reason  to  question  the  right  of  the  Ottoman  Porte  to  ex- 
clude other  nations  from  navigating  the  passage  which  connects 
it  with  the  Mediterranean,  both  shores  of  this  passage  being 
also  portions  of  the  Turkish  territory.  But  when  Turkey  lost 
a  part  of  her  possessions  bordering  upon  this  sea,  and  Russia 
had  formed  her  commercial  establishments  on  the  shores  of  the 
Euxine,  both  that  empire  and  other  maritime  powers  became 
entitled  to  participate  in  the  commerce  of  the  Black  Sea,  and 
consequently  to  the  free  navigation  of  the  Dardanelles  and  the 
Bosphorus.  This  right  was  expressly  recognized  by  the  treaty 
of  Adrianople  in  1829.  But  the  right  of  free  navigation  of  the 
Black  Sea,  and  the  consequent  right  of  passage  through  the 
Dardanelles  and  the  Bosphorus,  was  not  construed  to  interfere 


CH.  VL—PROPEBTY  AND  DOMAIN.  81 

with  the  right  of  territorial  jurisdiction  which  the  Ottoman 
Porte  exercises  over  these  straits. 

§  22.  The  great  lakes  and  their  outlets.  The  great  inland  lakes, 
and  their  navigable  outlets,  are  considered  as  subject  to  the 
same  rule  as  inland  seas :  where  enclosed  within  the  limits  of  a 
single  state  they  are  regarded  as  belonging  to  the  territory  of 
that  state,  but  if  different  nations  occupy  their  borders,  the  rule 
of  mare-clausum  cannot  be  applied  to  the  navigation  and  use  of 
tlieir  waters.  No  distinction  is  made  between  salt  water  lakes, 
or  inland  seas,  and  fresh  water  lakes. 

§  23.  Navigable  rivers  as  boundaries.  A  river  which  flows, 
for  its  entire  length,  through  the  territory  of  a  state,  is  regarded 
as  forming  a  part  of  its  dominion,  including  the  bays  and  estu- 
aries farmed  by  its  junction  with  the  sea.  Where  the  entire 
upper  portion  of  a  navigable  river  is  included  within  a  single 
state,  the  part  so  enclosed  is  undoubtedly  the  property  of  such 
state.  Where  a  navigable  river  forms  the  boundary  of  coter- 
minous states,  the  middle  of  the  channel, — ^the  jilum  aquce, — or 
thalweg,  is  generally  taken  at-  the  line  of  their  separation,  the 
presumption  of  law  being,  that  the  right  of  navigation  is  com- 
mon to  them  both.  But  this  presumption  may  be  rebutted  or 
destroyed  by  actual  proof  of  the  exclusive  title  of  one  of  the 
ripuarian  proprietors  to  the  entire  river.  Such  title  may  have 
been  acquired  by  prior  occupancy,  purchase,  cession,  treaty,  or 
any  one  of  the  modes  by  which  other  public  territory  may  be 
acquired.  But  where  the  river  not  only  separates  the  cotermi- 
nous states,  but  also  their  territorial  jurisdictions,  the  thalweg,  or 
middle  channel,  forms  the  line  of  separation  through  the  bays 
and  estuaries  through  which  the  waters  of  the  river  flow  into 
the  sea.  As  a  general  rule,  this  line  runs  through  the  middle 
of  the  deepest  channel,  although  it  may  divide  the  river  and  its 
estuaries  into  two  very  unequal  parts.  But  the  deeper  channel 
may  be  less  suited,  or  totally  unfit,  for  the  purposes  of  naviga- 
tion, in  which  case  the  dividing  line  would  be  in  the  middle  of 
the  one  which  is  best  suited  and  ordinarily  used  for  that  object. 


82  INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

The  division  of  the  islands  in  the  river  and  its  bays,  would 
follow  the  same  rule. 

§  24.  Changes  in  dividing  rivers  and  lakes.  Where  the  divid- 
ing line  of  two  states  is  water,  as  a  river  or  lake,  which  is  sub- 
ject to  changes,  important  questions  may  arise  respecting  the 
rights  of  property.  Thus,  where,  by  a  gradual  and  insensible 
movement,  the  water  advances  on  one  side  and  recedes  on  the 
other,  or  by  detrition  on  one  side  and  deposit  on  the  other,  a 
portion  of  the  soil  is  gradually  transferred,  there  is  evidently  a 
loss  to  one  state  and  an  increase  to  the  other.  So  also,  where 
islands  are  w^ashed  away  on  one  side  of  the  channel,  and  new 
ones  formed  on  the  other,  there  is  a  corresponding  change  of 
territory.  Again,  suppose  that  the  river  or  lake  which  consti- 
tutes the  boundary,  has  suddenly  changed  its  bed,  ^ill  this 
change  produce  a  corresponding  increase  or  diminution  of  terri- 
tory to  the  adjacent  proprietors  ?  The  Roman  law  determined 
with  great  care  the  effects  of  changes  in  the  distribution  of 
waters  upon  the  ownership  of  private  lands ;  and  the  influence 
of  this  law  is  manifest  in  the  rules  adopted  by  publicists  with 
respect  to  international  property. 

§  25.  Effects  on  bonndaries.  Where  the  moving  of  the  divid- 
ing water  is  so  gradual  as  to  be  almost  insensible,  the  changes 
produced  are  not  considered  as  acquisitions  and  losses  of  prop- 
erty, but  the  natural  consequences  of  property  already  existing ; 
because,  the  thing  owned  is  naturally  susceptible  of  this  physical 
increase  or  decrease.  In  such  a  case,  whether  the  dividing 
water  belongs  entirely  to  one  state,  or  the  boundary  is  the  middle 
or  thalweg,  each  party  gains  or  loses  accordingly  as  the  increase 
or  decrease  is  upon  its  side.  The  same  rule  applies  to  the 
gradual  removal  or  formation  of  islands  in  a  river  or  lake  which 
divides  states,  or  in  the  sea,  within  the  territorial  limits  or  ligne 
de  respect  of  a  state  bordering  upon  the  ocean.  Moreover,  a 
state  has  a  certain  right  of  preemption  to  islands  formed  adja- 
cent to  its  coast,  even  outside  of  this  line  of  respect.  But  the 
case  is  very  different  where  the  river  abandons  its  ancient  bed 


Cff.   VL— PROPERTY  AND  DOMAIN.  83 

and  forms  a  new  channel,  or  where  a  lake  leaves  its  former 
banks  and  forms  a  new  lake,  or  a  series  of  new  lakes ;  the 
boundaries  of  the  states  remain  in  the  abandoned  bed  of  the 
river,  or  in  the  position  formerly  occupied  by  the  lake. 

§  26.  Rivers  passing  through  several  states.  Where  a  naviga- 
ble river,  during  a  part  of  its  course,  flows  through  the  territory 
or  forms  the  boundary  of  one  state,  but  passes  through  a  third 
state  before  it  enters  the  sea,  questions  of  some  difficulty  have 
arisen  with  respect  to  its  dominion  and  use.  It  is,  however, 
now  generally  conceded  that  the  right  of  navigation,  for  com- 
mercial purposes,  is  common  to  all  the  nations  inhabiting  the 
different  parts  of  its  banks.  But  this  right  of  innocent  passage, 
being  what  the  text-writers  call  an  imperfect  right,  its  exercise 
is  necessarily  modified  by  the  safety  and  convenience  of  the 
state  which  is  affected  by  it,  and  can  only  be  effectually  secured 
by  mutual  conventions,  regulating  the  mode  of  its  exercise. 
The  Eoman  law  declared  navigable  rivers  to  be  so  far  public 
property,  that  a  free  passage  over  them  was  open  to  everybody, 
but  distinguished  between  rivers  and  the  sea,  the  former  being 
classed  among  res  publicce,  and  the  latter  among  res  communes. 

§  27.  Use  of  their  banks.  The  Roman  law  also  declares  the 
right  to  use  the  shores  to  be  an  incident  to  that  of  the  water, 
and  the  right  to  navigate  a  river  carries  with  it  the  right  to 
moor  vessels  to  its  banks,  to  lade  and  unlade  cargoes,  etc. 
Publicists  have  applied  this  principle  of  the  Roman  civil  law  to 
the  same  case  between  nations,  and  infer  the  right  to  use  the 
adjacent  land  for  the  purposes,  as  means  necessary  to  the  attain- 
ment of  the  end,  for  which  the  free  navigation  of  the  water  is 
permitted.  The  principal  right  would  seem  to  draw  after  it 
the  incidental  right  of  using  all  the  means  which  are  necessary 
to  secure  its  proper  enjoyment.  But  this  incidental  right,  like 
the  principal  right  itself,  is  imperfect  in  its  nature,  and  the 
mutual  convenience  of  both  parties  must  be  consulted  in  its 
exercise. 

§  28.  Right  of  innocent  passage.      Such  right  of  innocent 


84  INTEUNATIONAL    LAW  AND  LAWf^  OF   WAR. 

passage,  though  an  imperfect  right,  and  requiring  mutual  con- 
ventions regulating  the  mode  of  its  exercise,  is,  nevertheless,  a 
real,  subsisting  right,  founded  upon  the  law  of  nature,  and 
recognized  by  the  most  approved  writers  on  public  law.  It 
may  also  be  added,  that  it  has  been  recognized  by  the  general 
consent  of  nations,  and  must  now  be  regarded  as  an  established 
principle  of  international  law. 

§  29.  Modified  by  compact.  ^  But  those  interested  in  the  enjoy- 
ment of  this  principal  right,  and  its  incidents,  may  renounce 
them  entirely,  or  consent  to  modify  them  in  such  a  manner  as 
mutual  convenience  and  policy  may  dictate.  Thus,  by  the 
treaty  of  Westphalia,  the  navigation  of  the  River  Scheldt  was 
closed  to  the  Belgic  provinces,  in  favor  of  the  Dutch ;  and  by 
the  treaties  of  Vienna,  and  subsequent  conventions,  the  riparian 
powers,  on  the  banks  of  the  great  rivers  of  Europe,  agreed  to 
certain  detailed  regulations  respecting  their  navigation  through 
the  territory  of  the  states  in  which  such  rivers  debouched  into 
the  ocean.  But  this  agreement  of  the  riparian  states  to  regula- 
tions of  police  and  fixed  toll  duties  on  vessels  and  merchandise 
passing  through  the  territory  of  another  state,  to  and  from  the 
sea,  or  even  an  entire  surrender  or  renouncement  of  the  right, 
cannot  be  adduced  as  an  argument  against  the  existence  of  the 
right  itself.  On  the  contrary,  if  no  such  right  existed,  there 
would  be  no  necessity  for  its  regulation,  and  its  renouncement 
would  be  an  act  of  supererogation. 

§  30.  The  Rhine  and  other  great  rivers.  The  navigation 
of  the  Rhine  and  other  large  rivers  in  Europe,  and  of  the  Mis- 
sissippi and  the  St.  Lawrence  in  North  America,  have  been  the 
subject  of  extended  discussions  and  numerous  treaties,  to  which 
those  who  wish  to  pursue  the  examination  of  this  subject  are 
referred  for  further  information. 


CHAPTER    VII. 

RIGHTS  OF   LEGISLATION  AND  JURISDICTION. 

§  1.  Exclusive  power  of  legislation.  We  have  already  re- 
marked, that  the  exclusive  power  of  civil  and  criminal  legisla- 
tion, is  one  of  the  essential  rights  of  every  independent  and 
sovereign  state.  An  infringement  upon  this  right  is  a  limita- 
tion of  the  natural  sovereignty  of  the  state,  and  if  extended  to 
a  general  denial  of  this  power,  it  is  justly  considered  as  de- 
priving the  state  of  one  of  its  most  essential  attributes,  and  as 
reducing  it  to  the  position  of  dependence  upon  the  will  of 
another. 

§  2.  Law  of  real  property.  This  sovereign  right  of  legisla- 
tion extends,  (with  the  exceptions  hereafter  to  be  mentioned,)  to 
the  regulation  of  real  or  moveable  property  within  the  territorial 
limits  of  the  state,  no  matter  by  what  title  such  property  may 
be  held,  or  whether  it  belongs  to  aliens  or  to  citizens  of  the 
state.  The  law  of  the  place,  where  real  or  immovable  property 
is  situate,  or  the  lex  lod  rei  sitce,  governs  in  everything  relating 
to  the  tenure,  title,  and  transfer  of  such  property.  Hence  it  is, 
that  the  descent,  device,  or  conveyance  of  real  property,  in  a 
foreign  country,  must  be  governed  by,  and  executed  according 
to,  the  local  laws  of  the  state  where  such  property  is  situate. 

§  3.  Law  of  personal  property.  With  respect  to  personal  or 
movable  property,  the  same  rule  generally  prevails,  except  that 
the  law  of  the  place  where  the  person  to  whom  it  belonged  was 
domiciled  at  the  time  of  his  disease,  governs  the  succession,  ab 
intestato,  to  his  personal  effects.  So,  also,  the  law  of  the  place 
where  any  instrument  relating  to  personal  property  is  executed, 

8  85 


86  INTERNATIONAL  LAW  ANI)  LAWS  OF  WAR. 

by  a  person  domiciled  in  that  place,  governs,  as  to  the  form, 
execution  and  interpretation  of  the  instrument.  Thus,  the 
validity,  effect  and  interpretation  of  a  testament  of  personal 
property,  must  be  determined  by  the  law  of  the  place  where  it 
is  made,  and  where  the  party  making  it  is  domiciled.  Lex  loci 
domicilii  regit  actum.  The  rule  is  applicable  to  every  transfer, 
alienation,  or  disposition  made  by  the  owner,  whether  it  be  inter 
vivos,  or  caiisa  mortis,  and  is  founded  on  the  maxim  that  personal 
property  has  no  locality,  but  adheres  to  the  person  of  its  owner. 
Mohilia  sequuntur  personam.  There  are  exceptions  to  this  rule ; 
jii'st,  in  cases  where  the  local  or  customary  law  of  the  place  gives 
to  the  particular  property  a  necessarily  implied  locality ;  and 
second,  in  special  cases  provided  for  by  local  statutes. 

§  4.  Law  of  contracts.  The  general  law  of  contracts  is,  that 
the  validity  of  every  contract  is  to  be  decided  by  the  law  of  the 
place  where  it  is  made,  or,  in  legal  phraseology,  the  lex  loci  con- 
traetus  is  to  govern  in  everything  respecting  the  form,  interpre- 
tation, obligation,  and  eifect  of  the  contract.  "  The  rule,"  says 
Story,  "  is  founded,  not  merely  in  the  convenience,  but  in  the 
necessities  of  nations ;  for,  otherwise,  it  would  be  impracticable 
for  them  to  carry  on  an  extensive  intercourse  with  each  other." 

§  5.  Exceptions  to  the  rule  of  comity.  From  this  rule  are 
excepted  all  contracts  deemed  repugnant  to  the  fundamental 
laws  of  the  state  in  which  the  contracts  are  to  be  executed. 
But  as  comity  as  applied  to  the  law  of  contracts  is  the  general 
rule,  these  exceptions  are  to  be  limited  so  as  not  to  affect  the 
established  principle. 

§  6.  Rule  of  judicial  proceedings.  But  while  the  law  of  the 
place  where  the  contract  is  made  must  determine  the  obligation 
of  the  contract,  the  law  of  the  place  where  the  suit  is  pending 
must  regulate  the  remedy,  or  manner  of  proceeding,  to  enforce 
the  obligation.  Thus,  if  a  contract  made  in  one  country  is  at- 
tempted to  be  enforced,  or  comes  incidentally  in  question,  in  the 
judicial  tribunals  of  another,  everything  relating  to  the  forms 
of  proceeding,  and  the  rules  of  evidence,  to  limitation  or  pre- 


CH.  VIL— LEGISLATION  AND  JURISDICTION.  87 

scription,  and  to  the  execution  of  judgments,  is  to  be  determined 
solely  and  exclusively  by  the  law  of  the  state  where  the  pro- 
ceeding is  pending. 

§  7.  Law  of  personal  capacity  and  duty.  The  right  of  muni- 
cipal legislation  of  a  sovereign  state  extends  to  everything 
affecting  the  state  and  capacity  of  its  own  subjects,  with  respect 
to  their  personal  rights  within  its  own  territory,  and  also,  with 
certain  exceptions,  to  the  regulation  of  the  conduct  of  all  per- 
sons within  its  jurisdiction,  whether  subjects  or  foreigners. 
Moreover,  these  municipal  laws,  in  some  cases,  operate  beyond 
its  territorial  jurisdiction,  with  respect  to  the  condition  and  per- 
sonal capacity  of  its  citizens,  when  resident  in  a  foreign  country ; 
such  as  the  qualities  of  citizenship,  legitimacy  and  illegitimacy, 
minority  and  majority,  idiocy,  lunacy,  marriage  and  divorce. 
The  laws  of  a  state,  with  respect  to  these  qualities  or  capacities 
of  its  subjects,  travel  with  them  wherever  they  go,  and  attach 
to  them  in  whatever  country  they  are  resident.  But  it  must  be 
observed  that  the  municipal  laws  of  one  state  cannot  interfere 
with  any  rights  its  subjects  may  acquire,  or  privileges  they  may 
enjoy,  under  the  laws  of  another  state,  while  they  are  resident 
in  such  foreign  state,  and  without  the  jurisdictijon  of  their  own 
country.  The  same  rule  applies  to  personal  duties  and  obli- 
gations. 

§  8.  Droit  d'aubaine  and  droit  de  retraction.  In  the  darkness 
of  the  middle  ages,  the  rule  called  jics  albinatus,  or  droit  d^au- 
baine,  was  established,  by  which  all  the  property  of  a  deceased 
foreigner,  whether  movable  or  immovable,  was  confiscated  to 
the  use  of  the  state,  to  the  exclusion  of  his  heirs,  whether  claim- 
ing ab  intestato,  or  under  a  will  of  the  deceased.  But  the 
progress  of  civilization  has  almost  entirely  abolished  this  bar- 
barous and  inhospitable  usage.  Judge  Story  expresses  a  doubt 
if  it  is  now  recognized  by  any  of  the  civilized  nations  of  the 
earth.  The  analogous  usage  of  the  jus  detractus  or  droit  de 
retraction,  by  which  a  tax  was  levied  upon  the  removal  from 
one  state  to   another   of  property  acquired   by  succession   or 


88  INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

device,  has  also  been  reciprocally  abolished  in  most  civilized 
countries. 

§  9.  Law  of  escheat.  The  rules  of  international  and  muni- 
cipal law,  with  respect  to  foreigners  holding  real  estate,  are  less 
liberal  and  just  than  with  respect  to  their  personal  property.  It 
seems  to  be  the  universal  rule  of  civilized  society,  that  when 
the  owner  of  property  dies  intestate  and  leaves  no  heirs,  it 
should  vest  in  the  public,  and  be  at  the  disposal  of  the  govern- 
ment. Where,  therefore,  the  deceased  leaves  no  heirs  capable 
of  succeeding  to  his  estate,  it  vests  in  the  state.  According  to 
the  English  law,  escheat  denotes  an  obstruction  of  the  course  of 
descent,  and  a  consequent  determination  of  the  tenure,  by  some 
unforeseen  contingency,  in  which  case  the  land  naturally  results 
back,  by  a  kind  of  reversion,  to  the  original  grantor,  or  lord  of 
the  fee.  But  where  there  are  no  feudal  tenures,  and  no  private 
person  to  succeed  to  the  inheritance  by  escheat,  the  state  steps  in, 
in  the  place  of  the  feudal  lord,  by  virtue  of  its  sovereignty,  as 
the  presumed  original  proprietor  of  all  the  lands  within  its 
jurisdiction.  The  principle  is  certainly  a  just  one,  that,  if  the 
ownership  of  property  becomes  vacant,  the  right  should  subside 
into  the  whole  community,  in  w^hom  it  was  supposed  to  be 
originally  vested,  when  society  first  assumed  the  elements  of 
order  and  subordination.  But  the  rules  of  English  law,  with 
respect  to  the  rights  of  alien  heirs  to  inherit  property,  are  so 
unjust  and  illiberal  in  their  nature  and  effects,  that  they  have 
been  modified  and  limited  in  most  of  the  states  of  the  American 
Union,  by  decisions  of  courts  and  statutary  dispositions. 

§  10.  Foreign  marriages.  By  the  laws  of  some  countries, 
marriage  is  considered  in  no  other  light  than  as  a  civil  contract, 
while  in  others,  it  becomes  a  religious  as  well  as  a  natural  or 
civil  contract ;  "  for  it  is  a  great  mistake,"  says  Story,  "  to  sup- 
pose that  because  it  is  the  one,  therefore  it  may  not  likewise  be 
the  other.  Marriage  is  a  personal  consensual  contract,  but  is  a 
contract  sui  getieris,  and  differs  from  other  contracts  in  this,  that 
the  rights  and  obligations,  or  duties  arising  from  it,  are  not  left 


en.  VII.— LEGISLATION  AND  JURISDICTION.  89 

entirely  to  be  regulated  by  the  agreement  of  parties,  but  are,  to 
a  certain  extent,  matters  of  municipal  regulation,  over  which 
the  parties  have  no  control  by  any  declaration  of  their  will ; 
and,  unlike  other  contracts,  it  cannot,  in  general,  be  dissolved 
by  mutual  consent.  It  is,  therefore,  evident  that  the  rules  of 
law  applicable  to  other  contracts,  cannot  always  be  resorted  to 
in  expounding  and  enforcing  the  marriage  contract.  It  may, 
however,  be  laid  down  as  a  general  principle,  that  so  far  as 
marriage  is  a  consensual  personal  contract,  its  validity  must  be 
determined  according  to  the  lex  loei;  if  valid  in  the  place  where 
it  is  celebrated,  it  is  valid  everywhere,  and  if  invalid  there,  it  is 
equally  invalid  everywhere.  But  there  are  certain  exceptions 
to  this  rule,  the  most  prominent  of  which  are,  those  of  polygamy 
and  incest,  (which  are  prohibited  by  the  laws  of  every  civilized 
country,)  and  to  these  some  writers  add  those  marriages  made 
by  a  fraudulent  evasion  of  the  laws  of  the  state  to  which  the 
parties  belong. 

§11.  Foreign  divorces.  "There  can  be  no  doubt,''  says 
Story,  "  that  a  divorce  regularly  obtained,  according  to  the  juris- 
prudence of  the  country  where  the  marriage  was  celebrated  and 
where  the  parties  are  domiciled,  will  be  held  a  complete  dissolu- 
tion of  the  matrimonial  contract  in  every  country.''  But  where 
the  marriage  was  celebrated  in  one  place,  and  the  parties  are 
domiciled  in  another,  and  the  laws  of  tlie  two  places  in  regard 
to  the  dissolution  differ,  there  is  a  conflict  of  opinions  and  au- 
thorities. 

§  12.  Laws  of  trade  and  navigation.  As  a  general  rule,  the 
laws  of  trade  and  navigation  of  a  state  are  binding  upon  its 
citizens  wlierever  they  may  be,  but  they  cannot  affect  foreigners 
beyond  its  territorial  limits.  Thus,  offenses  against  the  laws  of 
a  state,  regulating  or  prohibiting  any  particular  trade,  if  com- 
mitted by  foreigners  within  the  territorial  jurisdiction  of  another 
state,  are  not  punishable  by  the  tribunals  of  the  state  whose 
laws  they  have  violated ;  but  if  committed  by  its  citizens,  they 
are  so  punishable,  no  matter  where  committed,  whether  within 

8»  M 


90  INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

its  own  limits,  on  the  high  seas,  or  in  a  foreign  country.  A 
distinction,  however,  must  be  made  between  mere  commercial 
regulations  permitting  or  prohibiting  a  certain  trade,  and 
statutes  creating  a  criminal  offense,  with  personal  penalties 
expressly  applicable  to  all  the  citizens  of  the  state. 

§  13.  Laws  of  bankruptcy.  It  is  laid  down,  as  a  general 
principle  of  international  jurisprudence,  that  a  discharge  of  a 
contract  by  the  law  of  the  place  where  it  is  made,  is  a  discharge 
everywhere,  no  matter  whether  made  between  a  citizen  and  a 
foreigner,  or  between  foreigners.  But  in  the  application  of  this 
rule,  it  is  necessary  to  distinguish  between  cases  where,  by  the 
lex  lociy  there  is  a  virtual  or  direct  extinguishment  of  the  debt 
itself,  and  where  there  is  only  a  partial  extinguishment  of  the 
remedy.  As  some  bankrupt  and  insolvent  laws  absolutely  dis- 
charge from  all  rights  and  remedies,  while  in  others  neither  are 
entirely  extinguished,  there  necessarily  result  various  refine- 
ments and  distinctions  in  the  international  law  of  bankruptcy. 

§  14.  Law  of  treason  and  other  crimes.  Criminal  laws  may 
be  applied  to  foreigners,  and  all  persons  resident  within  the  ter- 
ritory, for  all  such  persons  owe  a  temporary  allegiance  to  the 
state  where  they  reside.  But  although  a  state  takes  no  cog- 
nizance of  offenses  committed  beyond  its  limits,  and  against  the 
laws  of  another  country,  it  nevertheless  can  punish  the  crimes 
of  its  own  citizens,  under  its  own  laws,  if  within  their  reach,  no 
matter  where  the  crime  may  have  been  committed.  Thus,  the 
laws  of  treason  are  binding  upon  the  subjects  of  a  state,  no 
matter  where  the  treasonable  act  is  d#ne,  for  their  allegiance, 
until  changed,  is  considered  as  traveling  with  them,  wherever 
they  may  go. 

§  15.  Judicial  power  of  a  state.  It  may  be  stated,  in  general 
terms,  that  the  judicial  power  of  a  state  is  coextensive  with  its 
legislative  power,  and  is  independent  of  every  other  state.  This 
general  position,  however,  must  be  qualified  by  the  exceptions 
to  its  application  arising  out  of  express  compacts  with  others, 
by  which  it  may  part  with   certain   portions  of  its  sovereign 


CH.  VIL— LEGISLATION  AND  JURISDICTION.  91 

rights  or  modify  the  exercise  of  its  powers  as  a  sovereign  and 
independent  state.  It  must  be  noticed  also  that  its  judicial 
power  does  not  embrace  those  cases  in  which  the  municipal 
claims  of  another  nation  operate  within  its  territory,  such 
as  the  cases  of  foreign  ministers,  or  of  a  fleet,  or  army  coming 
within  its  territorial  limits,  by  its  permission,  either  express 
or  implied. 

§  16.  Jurisdiction  with  respect  to  actions.  Continental  jurists 
generally  agree  that,  properly  speaking,  there  are  three  places 
of  jurisdiction  ;  first,  t\\e  forum  domiGilii,  or  place  of  domicil  of 
the  party  defendant ;  second,  the  forum  rei  sitce,  or  the  place 
where  the  thing  in  controversy  is  situate ;  and  third,  the  forum 
contractus,  or  forum  rei  gestm,  or  the  place  where  the  contract  is 
made,  or  the  act  is  done.  These  distinctions  in  jurisdiction  re- 
sult from  the  distinctions  of  the  Roman  civil  law  which  have 
been  introduced  into  the  jurisprudence  of  most  of  the  conti- 
iiental  nations  of  Europe.  In  the  corresponding  distribution 
of  actions  by  the  English  common  law  into  personal,  real,  and 
mixed  actions,  the  former  are  generally  capable  of  being  brought 
wherever  the  party  can  be  found,  while  the  jurisdiction  of  the 
Iktter  are  confined  to  the  place  rei  sitce  ;  in  other  words,  perso- 
nal actions  are  transitory ,  while  real  and  mixed  actions  are  loeaL 
Considered  in  an  international  point  of  view,  either  the  thing 
or  the  person  made  the  subject  of  the  jurisdiction,  must  be 
within  the  territory,  for  no  sovereignty  can  extend  its  proce&s 
beyond  its  own  territorial  limits  so  as  to  subject  either  persons 
or  property  to  its  judicial  decisions ;  and  every  exertion  of  au- 
thority of  this  sort,  beyond  its  limits,  is  a  mere  nullity,  and 
incapable  of  binding  such  persons  or  property  in  any  other  tri- 
bunals. 

§  17.  Of  a  state  over  its  own  citizens.  In  regard  to  the  citi- 
zens (native  or  naturalized)  of  a  state,  while  within  its  territory, 
the  jurisdiction  of  the  sovereignty  over  them  is  complete  and 
irresistible.  It  cannot  be  controlled,  and  ought  everywhere  to 
be  respected.     In  regard  to  citizens  domiciled  abroad,  nations 


92  INTERNATIONAL    LAW  AND  LAWS  OF   WAR. 

generally  assert  a  claim  to  regulate  the  rights,  duties,  acts,  and 
obligations  of  their  own  citizens,  wherever  they  may  be  domiciled. 
This  claim  is  sometimes  admitted  by  foreign  nations  as  a  matter 
of  comity ;  but  it  may  be  denied  whenever  it  is  deemed  injurious 
to  their  own  interest,  or  subversive  of  their  policy  or  institutions. 

§  18.  Over  alien  residents.  All  persons  found  within  the 
limits  of  a  government,  (unless  specially  excepted  by  the  law 
of  nations,)  whether  their  residence  is  permanent  or  temporary, 
are  subject  to  its  jurisdiction ;  but  it  may  or  may  not,  as  it 
chooses,  exercise  it  in  cases  of  dispute  between  foreigners. 
"  Thus,  in  France,  with  few  exceptions,  the  tribunals  do  not 
entertain  jurisdiction  of  controversies  between  foreigners,  re- 
specting personal  rights  and  interests.  But  this  is  a  matter  of 
mere  municipal  policy  and  convenience,  and  does  not  result 
from  any  principles  of  international  law.  In  England  and 
America,  on  the  other  hand,  suits  are  maintainable,  and  are 
constantly  maintained,  between  foreigners,  where  either  of  them 
is  within  the  territory  of  the  state  where  the  suit  is  brought.'^ 

§19.  Over  real  property.  As  everything  relating  to  the 
tenure,  title,  transfer,  descent,  and  testamentary  disposition  of 
real  property,  is  regulated  by  the  local  law,  so,  also,  all  pro- 
ceedings in  courts  of  justice  relating  to  that  species  of  property, 
such  as  the  rules  of  evidence,  the  forms  of  action  and  pleadings, 
and  rules  of  decision,  must  necessarily  be  governed  by  the  same 
law.  This  jurisdiction  is  exclusive.  "In  respect  to  immovable 
property,"  says  Story,  "  every  attempt  of  a  foreign  tribunal  to 
found  a  jurisdiction  over  it,  must,  from  the  very  nature  of  the 
case,  be  utterly  nugatory,  and  its  decree  must  be  forever  incapa- 
able  of  execution  in  remP 

§  20.  Over  personal  property.  The  state,  in  whose  territory 
personal  property  is  actually  situate,  has  an  entire  dominion, 
sovereignty  and  jurisdiction  over  it,  while  there,  as  it  has  over 
real  property,  and  it  may,  to  the  same  extent,  regulate  its 
transfer,  subject  it  to  process  and  execution,  and  control  its  uses 
and  disposition.     Hence  it  is,  that  whenever  personal  property" 


CH.  VIL— LEGISLATION  AND  JURISDICTION.  93 

is  taken  by  arrest,  attachment,  or  execution,  within  a  state,  the 
title  so  acquired  under  the  laws  of  the  state,  is  held  valid  in 
every  other  state ;  and  the  same  rule  is  applied  to  debts  due 
non-residents,  which  are  subjected  to  the  like  process  under  the 
local  laws  of  the  state. 

§  21.  Qualification  of  the  rule.  Mr.  Wheaton  considers  the 
rule,  with  respect  to  the  jurisdiction  of  a  state  over  personal 
property  or  movables  within  its  territorial  limits,  to  be  the  same 
as  over  immovables  or  real  property,  with  this  qualification, 
that  foreign  laws  may  furnish  the  rule  of  decision  in  cases  where 
they  apply,  whilst  the  forms  of  process,  rules  of  evidence  and 
prescription,  are  governed  by  the  lex  fori,  "Thus  the  lex 
domicilii  forms  the  law  in  respect  to  a  testament  of  personal 
property,  or  succession  ah  inteMato,  if  the  will  is  made,  or  the 
party  on  whom  the  succession  devolves  resides,  in  a  foreign 
country ;  whilst,  at  the  same  time,  the  lex  fori  of  the  state,  in 
whose  tribunals  the  suit  is  pending,  determines  the  forms  of 
process  and  prescription. 

§  22.  Origin  of  the  difference.  "  The  difference,"  says  Pothier, 
"  which  the  law  establishes  between  acts  inter  vivos  and  acts 
causa  mortis,  in  permitting  foreigners  to  do  the  former,  and 
prohibiting  them  from  doing  the  latter,  is  founded  on  the  very 
nature  of  these  acts.  Acts  inter  vivos  are  founded  on  the  droit 
des  gens,  (jus  gentium — or  law  of  nature.)  Foreigners  enjoy 
every  right  which  arises  from  the  jus  gentium.  They  may, 
therefore,  perform  all  sorts  of  acts  inter  vivos.  The  right  to 
make  a  testament,  active  or  passive,  is,  on  the  contrary,  derived 
from  the  civil  law — testammti  f actio  est  juris  civilis — foreigners 
not  enjoying  what  is  of  civil  law,  have  not  this  faculty  or 
right.'' 

§  23.  Voluntary  assignments  and  assignments  in  bankruptcy. 
From  the  same  principle  results  the  distinction  which  is  gener- 
ally made  by  the  courts  of  the  United  States  between  a  foreign 
voluntary  assignment  for  the  benefit  of  creditors,  and  a  foreign 
assignment  in  bankruptcy.     The  jtis  disponendi  applies  to  the 


94  INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

former,  whereas  an  assignment  under  the  bankrupt  law,  is  a 
proceeding  in  invitum;  the  one  is  a  universal  natural  right 
applicable  everywhere,  while  the  other  is  a  forcible  disposition, 
having  its  origin  in  local  law,  and  confined  to  the  jurisdictional 
limits  of  the  maker  of  the  law. 

§  24.  Public  and  private  vessels  on  the  high  seas.  Public  and 
private  vessels,  on  the  high  seas  and  out  of  the  territorial  limits 
of  any  other  state,  are  subject  to  the  jurisdiction  of  the  state  to 
which  they  belong.  The  ocean  is  common  to  all  mankind,  ani 
may  be  successively  used  by  all  as  they  have  occasion.  But  this 
jurisdiction  is  exclusive,  only  so  far  as  respects  offenses  against 
its  own  municipal  laws,  and  not  as  respects  offenses  against  the 
law  of  nations,  which  may  be  punished  in  the  competent 
tribunal  of  any  country  where  the  offender  may  be  found,  or 
into  which  he  may  be  carried,  although  committed  on  board  a 
foreign  vessel  on  the  high  seas. 

§  25.  Public  vessels  and  prizes  in  foreign  ports.  Where  there 
are  no  express  prohibitions,  the  ports  of  one  state  are  considered 
as  open  to  the  public  armed  and  commissioned  vessels  of  every 
other  nation  with  whom  it  is  at  peace.  Such  ships  are  exempt 
from  the  jurisdiction  of  the  local  tribunals  and  authorities, 
whether  they  enter  the  ports  under  an  express  permission,  stipu- 
lated by  treaty,  or  a  permission  implied  from  the  absence  of 
prohibition.  This  exemption  extends  not  only  to  the  belliger- 
ent ships  of  war,  privateers,  and  the  prizes  of  either,  who  seek 
a  temporary  refuge  in  neutral  waters,  from  the  casualties  of  the 
sea  and  war,  but  also  to  prisoners  of  war,  on  board  any  prize  or 
public  vessel  of  her  captor.  Such  vessels,  in  the  ^command  of 
a  public  officer,  possess,  in  the  ports  of  a  neutral,  the  rights 
of  ex-territoriality,  and  are  not  subject  to  the  local  jurisdiction. 

§  26.  Private  vessels  in  foreign  ports.  Private  vessels  of  one 
state  entering  the  ports  of  another,  are  not,  in  general,  exempt 
from  the  local  jurisdiction,  unless  by  express  compact,  and  to 
the  extent  provided  by  sucli  compact.  But  there  are  certain 
exceptions  to  this  rule,  which  result  from  the  riglit  of  asylum, 


CH.   VIL— LEGISLATION  AND  JURISDICTION.  95 

based  on  the  laws  of  humanity.  A  vessel  driven  by  stress  of 
weather,  or  carried  by  unlawful  force  into  a  prohibited  port,  or 
into  an  open  port  with  prohibited  articles  on  board,  incurs  no 
penalty  or  forfeiture,  in  either  case.  The  cases  of  blockade  and 
carrying  contraband,  are  familiar  examples  of  the  principle. 
But  the  rule  of  law,  and  the  comity  and  practice  of  nations,  go 
much  further  then  these  cases  of  necessity,  and  allow  a  merchant 
vessel  of  one  state,  coming  into  an  open  port  of  another,  volun- 
tarily, for  the  purposes  of  lawful  trade,  to  bring  with  her,  and 
keep  over  her,  to  a  very  considerable  extent,  the  jurisdiction 
and  authority  of  the  laws  of  her  own  country,  excluding,  to  this 
extent,  by  consequence,  the  jurisdiction  of  the  local  law. 

§  27.  Summary  of  the  juiicial  powers  of  a  state.  It  may  be 
stated,  in  general  terms,  that  the  judicial  power  of  every  sov- 
ereign state  extends :  1st.  To  all  civil  proceedings,  in  rem,  re- 
lating to  immovable  or  real  property  within  its  territory ;  2d. 
To  all  civil  proceedings  in  rem,  relating  to  movable  or  personal 
property  within  its  territory ;  3d.  To  all  mixed  actions,  relating 
to  real  and  personal  property  within  its  territory ;  4th.  To  all 
its  public  and  private  vessels  on  tlie  high  seas,  to  its  public  ves- 
sels and  their  prizes  in  foreign  ports,  and,  in  certain  cases,  to  its 
private  vessels  in  foreign  ports;  5th.  To  all  controversies  re- 
specting personal  rights  and  contracts,  or  injuries  to  the  person 
or  property,  when  the  person  resides  within  the  territory, 
wherever  the  cause  of  action  may  have  originated.  In  this  class 
of  controversies,  the  judicial  power  may  or  may  not  be  exer- 
cised, according  as  is  provided  by  municipal  law.  This  general 
principle  is  entirely  independent  of  the  rule  of  the  decision 
which  is  to  govern  the  tribmial. 

With  respect  to  criminal  matters,  the  judicial  power  of  the 
state  extends,  with  certain  qualifications:  1st.  To  the  punish- 
ment of  all  offenses  against  its  municipal  laws,  by  whomsoever 
committed,  within  its  territory;  2d.  To  the  punishment  of  all 
such  offenses,  by  whomsoever  committed,  on  board  its  public  or 
private  vessels  on  the  high  seas,  and  on  board  its  public  vessels, 


96  INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

and,  in  some  cases,  on  board  its  merchant  vessels  in  foreign 
ports;  3d.  To  the  punishment  of  all  such  offenses  by  its  own 
subjects,  wheresoever  committed;  4th.  To  the  punishment  of 
piracy,  and  other  offenses  against  the  law  of  nations,  by  whom- 
soever and  wheresoever  committed. 

§  28.  Extradition  of  criminals.  There  has  been  much  discus- 
sion in  regard  to  the  duty  of  a  foreign  state  to  deliver  up  the 
persons  charged  with  or  convicted  of  high  crimes,  on  the  de- 
mand of  another  in  which  the  crime  has  been  committed.  The 
weight  of  authority  is  in  favor  of  regarding  this  question  as  a 
matter  of  comity  and  not  of  strict  right.  Extradition  is,  there- 
fore, usually  regarded  as  a  matter  of  treaty  stipulation,  the  mode 
and  means  of  executing  which  must  depend  upon  the  constitu- 
tional and  municipal  laws  of  each  state.  It  seems  to  be  settled 
in  Great  Britain  and  the  United  States  that  a  treaty  alone  is  not 
sufficient;  there  must  also  be  a  legislative  act  for  its  execution. 

§  29.  Criminal  sentences.  A  criminal  sentence,  pronounced 
under  the  municipal  law  of  one  state,  can  have  no  legal  effect 
in  another.  If  it  be  a  conviction,  it  cannot  be  executed  without 
the  limits  of  the  state  in  which  it  is  pronounced ;  and  if  such 
conviction  be  attended  with  civil  disqualifications  in  the  country 
where  pronounced,  these  disqualifications  do  not  follow  the 
offender  into  another  independent  state. 

§30.  Foreign  judgments.  The  conclusiveness  of  foreign  sentences 
and  judgments,  where  they  are  drawn  in  question  in  the  tribu- 
nals of  another  state,  will  depend  upon  the  nature  of  the  action, 
and  the  usage  of  the  different  nations,  and  the  special  compacts 
between  them.  In  personal  actions,  res  adjudicata,  in  one 
country,  can  have,  per  se,  no  effect  in  another.  The  effect 
attached  to  a  foreign  judgment  is  different  in  different  countries. 
In  English  and  American  courts,  a  foreign  judgment  is  prima 
facie  evidence  where  the  party  claiming  the  benefit  of  it  applies 
to  have  it  enforced,  and  it  lies  on  the  defendant  to  impeach  the 
justice  of  it,  or  to  show  that  it  was  irregularly  obtained.  If 
this  is  not  shown,  it  is  received  as  evidence  of  a  debt ;  but  if  it 


GH.  VIL— LEGISLATION  AND  JURISDICTION.  07 

appears,  from  the  record  of  the  proceedings  upon  which  the 
original  judgment  was  founded,  that  it  was  unjustly  or  fraudu- 
lently obtained,  or  resulted  from  false  premises,  or  a  palpable 
mistake  of  the  law  applicable  to  the  case,  it  will  not  be  enforced. 
In  France,  the  operation  of  a  foreign  judgment  is  restrained 
within  still  narrower  limits. 

§  31.  Judgments  of  prize  courts,  etc.,  in  rem.  Foreign  judg- 
ments, or  sentences  of  a  court  of  competent  jurisdiction,  proceed- 
ing in  rem,  such  as  the  sentences  of  prize  courts,  courts  of  admi- 
ralty, and  revenue  coui-ts,  are  conclusive  as  to  the  proprietary 
interest  in,  or  title  to,  the  thing  in  question,  wherever  the  same 
comes  incidentally  in  controversy  in  the  tribunals  of  another 
state. 

§  32.  Courts,  liow  far  judges  of  their  own  jurisdiction.  If  a 
foreign  court  exercises  a  jurisdiction  which,  according  to  the 
law  of  nations,  its  sovereign  could  not  confer  upon  it,  its  sen- 
tence or  judgment  is  not  available  in  the  courts  of  any  other 
state,  and  the  courts  in  which  such  judgment  is  brought  in  con- 
troversy will  determine  the  question  of  jurisdiction  for  them- 
selves ;  but  so  far  as  its  jurisdiction  depends  upon  municipal 
law,  or  its  proceedings  are  governed  by  municipal  rules,  it  is 
the  exclusive  judge  of  its  own  jurisdiction  and  of  the  regularity 
of  its  own  proceedings,  and  its  decision  on  these  points  binds 
the  world. 

§  33.  Proof  of  foreign  laws.  As  a  general  rule,  courts  do  not 
take  judicial  notice  of  the  laws  of  a  foreign  country,  but  they 
must  be  proved,  not  as  facts  to  the  jury,  but  as  facts  to  the 
court.  The  court,  therefore,  decides  what  is  the  proper  evidence 
of  such  laws,  and  of  their  applicability  to  the  case  in  hand. 
The  manner  of  proof  must  vary,  according  to  circumstances. 
The  general  principle  is,  that  the  best  proof  shall  be  required 
which  the  nature  of  the  case  admits  of.  But  to  require  such 
proof  of  the  laws  of  a  foreign  state  as  its  institutions  and  usages 
do  not  admit  of,  would  be  unjust  and  unreasonable.  "But 
foreign  laws,  customs,  and  usages,"  says  Story,  "  may  be  proved, 

9  N 


98  INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

and  indeed  must  ordinarily  be  proved,  by  parol  evidence.  The 
usual  course  is,  to  make  such  proof  by  the  testimony  of  compe- 
tent witnesses,  instructed  in  the  law,  under  oath.  Sometimes, 
however,  certificates  of  persons  in  high  authority  have  been 
allowed  as  evidence." 

§  34.  Of  contracts  and  instruments.  The  same  may  be  said 
of  the  proof  of  contracts,  instruments,  and  other  acts  made  or 
done  in  one  country,  and  offered  in  evidence  in  another.  In 
some  cases,  it  is  sufficient  to  prove  them  in  the  manner  and  by 
the  solemnities  and  proofs  which  are  deemed  sufficient  by  the 
law  of  the  place  where  they  are  executed ;  and,  in  others,  they 
are  required  to  be  proved  according  to  the  law  of  the  place 
where  the  action  or  other  judicial  proceeding  is  instituted.  On 
this  subject,  the  law  and  practice  of  different  states  differ,  as  also 
the  opinions  of  publicists. 

§  35.  Of  foreign  judgments,  etc.  Foreign  judgments  are,  as  a 
general  rule,  to  be  authenticated  in  the  same  manner  as  other 
instruments  and  documents  executed  in  another  country.  The 
most  usual  mode  of  proof  is  by  an  exemplification  under  the 
great  seal,  but  this  is  by  no  means  the  only  one.  The  public 
seal  of  a  foreign  sovereign  or  state,  affixed  to  a  judgment,  is 
generally  the  highest  and  most  convenient  evidence  of  its 
authority. 


CHAPTEK    yill. 

RIGHTS  OF  LEGATION  AND  TREATY. 

§  1.  Right  of  legation  essential  to  sovereignty.  Another  es- 
sential attribute  of  sovereignty  is  the  right  of  legation  and  treaty. 
Legation  consists  in  sending  diplomatic  agents  to  other  states, 
and  in  receiving  such  as  are  sent  by  them.  This  right  of  an 
independent  sovereign  state  to  send  and  receive  diplomatic 
agents,  is  regarded,  in  international  law,  as  a  perfect  one ;  but 
the  obligation  to  do  so  is  deemed  imperfect,  for,  strictly  speaking, 
no  state  can  be  compelled  either  to  send  or  to  receive  such 
agents.  Nevertheless,  usage  and  comity  have  established  a  sort 
of  reciprocal  duty  in  this  respect. 

§  2.  Of  semi-sovereign  states,  etc.  How  far  the  rights  of  le- 
gation belong  to  a  semi-sovereign  or  dependent  state,  must  de- 
pend upon  its  relations  to  the  superior  with  which  it  is  connected 
or  under  whose  protection  it  is  placed.  Its  sovereignty  not 
being  complete,  it  may,  or  may  not  be,  entitled  to  a  right  inci- 
dent to  sovereignty,  according  to  the  nature  and  circumstance 
of  the  case.  Thus,  by  the  constitution  of  the  United  States  of 
America,  every  state  is  expressly  forbidden  from  entering,  with- 
out the  consent  of  congress,  into  any  agreement  or  compact  with 
another  state,  or  with  a  foreign  power. 

§  3.  How  affected  by  civil  war.  Strictly  speaking,  every  state 
has  the  exclusive  right  to  determine  in  whom  its  sovereign  au- 
thority is  vested.  Nevertheless,  in  case  of  a  revolution  or  civil 
war,  foreign  states  must,  of  necessity,  judge  for  themselves 
whether  they  will  continue  their  accustomed  diplomatic  relations 
with  the  former  government,  or  commence  them  with  the  revo- 

99 


100        INTERNATIONAL    LAW  AND  LAWS  OF  WAR. 

lutionary  party.  This  is  sometimes  a  question  of  great  deli- 
cacy, and  in  order  to  avoid  any  positive  decision  of  it,  diplomatic 
intercourse  is  either  entirely  suspended  until  the  final  termina- 
tion of  the  contest,  or  is  partially  kept  up  by  means  of  diplo- 
matic agents,  of  special  and  limited  authority,  who  are  not 
vested  with  full  ministerial  powers,  nor  entitled  to  diplomatic 
honors. 

§  4.  Refusal  to  receive  a  particular  person.  As  a  state  is  not 
under  a  perfect  obligation  to  receive  diplomatic  agents  from 
another,  it  may  refuse  to  receive  any  particular  individual,  either 
on  the  ground  of  personal  character,  or  of  the  authority  con- 
ferred upon  him.  Thus,  in  France,  where  the  legates  or  nuncios 
of  the  Pope  were  the  bearers  of  powers  which  were  deemed  in- 
compatible with  the  constitution  and  laws  of  the  state,  it  was 
deemed  proper  to  refuse  such  agents  until  their  powers  were 
reduced  to  reasonable  limits.  Again,  the  reception  of  a  foreign 
diplomatic  agent  has  sometimes  been  refused  on  the  ground  of 
personal  character,  or  known  hostility  to  the  sovereign,  or  the 
state  to  which  he  is  sent. 

§  5.  Conditional  reception.  Where  the  reception  is  refused,  it 
is  proper  that  the  motives  or  grounds  of  the  refusal  be  alleged ; 
and  where  conditions  are  annexed,  they  must  be  expi^essed  before 
or  at  the  time  of  the  reception,  for,  otherwise,  the  agent  is  en- 
titled to  claim  the  full  rights  and  honors  annexed  to  the  office 
which  he  fills.  There  are  no  tacit  or  implied  conditions  in  such 
receptions  which  can  modify  or  limit  the  public  character  in 
which  he  is  received,  and  with  which  he  was  accredited  by  the 
sovereign  state  which  sent  him. 

§  6.  What  department  may  send  and  receive.  The  question 
with  respect  to  what  department  of  the  government  belongs  the 
right  of  sending  and  receiving  diplomatic  agents,  depends  upon 
the  municipal  constitution  of  the  state.  In  monarchical  gov- 
ernments, this  prerogative  usually  resides  in  the  sovereign ;  in 
republics,  it  is  generally  vested  in  the  chief  executive,  or  in  the 
President  and  his  counsel,  or  the  senate,  conjointly.     In  the 


CH.  VIIL— LEGATION  A'N^  TREATY:  101  * 

United  States  of  America,  the  President  alone  receives  a  foreign 
minister,  and  the  appointment  of  a  minister  to  a  foreign  court  is 
made  by  the  President,  with  the  advice  and  consent  of  the  senate. 

§  7.  Art  of  diplomacy.  In  the  diplomacy  of  the  middle 
ages,  it  was  proclaimed,  as  a  maxim  of  the  art,  that  "  dissimula- 
tion must  be  met  by  dissimulation,  and  falsehood  by  falsehood,'' 
and,  at  even  later  periods,  and  in  the  most  refined  courts  of 
Europe,  bribery,  gallantry,  and  intrigue  were  regarded  as  the 
most  effective  arguments  in  the  discussion  of  diplomatic  ques- 
tions. But  such  disreputable  means  of  negotiation  are  now 
seldom  resorted  to,  and  the  most  able  diplomatists  of  the  present 
age  are  men  as  much  distinguished  for  their  exalted  personal 
character  and  unimpeachable  integrity,  as  for  their  talents  and 
learning.  While  a  knowledge  of  the  rules  of  diplomacy,  and 
of  the  laws  regulating  the  international  rights  and  duties  of 
states,  are  absolutely  indispensable  in  a  public  minister,  it  may 
be  remarked,  that  good  manners  and  good  temper  seem  pecu- 
liarly necessary  in  an  officer  so  intimately  connected  with  the 
etiquette  of  polite  society  and  ceremonies  of  courts. 

§  8.  Exercise  of  the  right  may  be  restricted  by  treaty.  The 
right  of  a  state  to  negotiate  and  contract  public  treaties  with 
other  nations  is,  like  the  right  of  legation,  a  necessary  incident 
to  its  sovereignty.  This  power  exists  in  full  vigor  in  every 
state  which  has  not  parted  with  this  portion  of  its  natural 
sovereignty,  or  has  not  agreed  to  modify  its  exercise  by  some 
compact  with  other  states.  Sovereign  and  independent  states 
are  sometimes  restricted  in  their  power  to  make  new  treaties  by 
the  conditions  of  alliances  already  formed  with  others.  Such 
limitation  affects  the  exercise  of  the  power  of  negotiating 
treaties,  but  is  not  regarded  as  a  modification  of  the  'power 
itself. 

§  9.  By  influence  of  powerful  neighbors.  It  is  admitted  that 
many  of  the  smaller  states  of  Europe,  nominally  sovereign  and 
independent,  have  been  forced  to  accede  to  treaties  to  which 
they  were  opposed,  and  have  been  deterred  from  forming  those 


t^^"^ '^  ^'^^'I^Sk^'ATmNAliLAW  AND  LAWS  OF   WAR. 

they  desired,  through  the  influence  of  their  powerful  neighbors ; 
but  such  states  were  not  really  independent,  and  their  cases  do 
not  affect  the  general  rule  of  international  law. 

§  10.  Treaties  with  dependent  states.  The  right  of  semi-sove- 
reign and  dependent  states  to  contract,  by  treaty,  is,  like  their 
right  of  legation,  to  be  determined  by  the  nature  of  their  con- 
nection with,  or  dependence  on  others.  We  have  already  shown 
that  a  colony,  or  ordinary  dependency,  is  a  part  of  a  state,  but 
cannot  itself  be  regarded  as  a  distinct  political  organization, 
possessing  the  essential  attributes  of  a  state ;  that  the  mere  fact 
of  dependence,  or  of  feudal  vassalage  and  the  payment  of  tribute, 
or  of  occasional  obedience,  or  of  habitual  influence,  does  not 
destroy,  although  it  may  greatly  impair,  the  sovereignty  of  the 
states  so  situated.  We  have  also  shown  the  effects  of  a  protec- 
torate, of  a  confederation,  and  of  a  union,  upon  the  sovereignty 
of  the  protected,  confederated,  and  united  states.  The  powers 
of  such  states  to  contract,  by  treaty,  will  necessarily  depend 
upon  the  character  of  the  relations  thus  formed  with  others.  A 
foreign  power,  treating  with  a  semi-sovereign,  dependent  or 
confederated  state,  is  bound  to  know  how  far  such  state  is  capable 
of  contracting  obligations  by  treaty.  If  it  contract  with  a  state 
incapable  of  entering  into  such  engagements,  the  treaty  is  neces- 
sarily invalid. 

§  11.  Treaty-making  power.  The  treaty-making  power  of  a 
state  is  determined  by  its  own  constitution,  or  fundamental  law. 
In  monarchical  governments  it  is  usually  vested  in  the  reigning 
sovereign,  sometimes,  however,  subject  to  restrictions.  In 
republics  it  is  usually  vested  in  the  chief  executive,  either  alone 
or  conjointly  with  a  council  or  senate.  By  the  Constitution  of 
the  United  States  of  America,  the  President  has  power,  by  and 
with  the  advice  and  consent  of  the  senate,  to  make  treaties, 
provided  that  two-thirds  of  the  senators  present  concur. 

§  12.  Treaties  must,  in  general,  be  ratified.  The  question,  hoAv 
far,  under  the  positive  law  of  nations,  ratification  by  the  state 
in   whose   name   the   treaty  is   made,  by   its   duly   authorized 


CH.  VIIL— LEGATION  AND   TREATY.  103 

minister  or  diplomatic  agent,  furnished  with  full  power,  is 
essential  to  the  validity  of  the  treaty,  was  at  one  time  the  subject 
of  much  doubt  and  discussion.  But  it  is  now  the  settled  usage 
to  require  such  ratification,  even  where  this  prerequisite  is  not 
reserved  by  the  express  terms  of  the  treaty  itself.  The  muni- 
cipal constitution  of  the  state  determines  in  whom  the  power  of 
ratification  resides.  By  the  constitution  of  the  United  States 
of  America,  treaties  are  negotiated  and  concluded  under  the 
authority  of  the  President,  but  the  advice  and  consent  of  the 
senate  is  essential  to  enable  him  to  pledge  the  national  faith,  by 
making  a  treaty  the  supreme  law  of  the  land. 

§  13.  Exception  in  cases  of  truces,  etc.  Such  acts  as  truces, 
capitulations,  cartels,  ransoms,  etc.,  if  within  the  implied  powers 
of  the  military  officers  making  them,  do  not,  in  general,  require 
the  ratification  of  the  supreme  power  of  the  state,  unless  such 
ratification  be  expressly  reserved  in  the  act  itself,  or  required  by 
local  law. 

§  14.  Sponsions.  In  case  of  sponsions,  where  agreements  are 
made  without  authority,  or  in  excess  of  authority,  an  express  or 
tacit  ratification  is  necessary  to  make  them  binding.  The 
former  is  given  in  positive  terms  and  with  the  usual  forms ;  the 
latter  is  implied,  from  the  fact  of  acting  under  the  agreement  as 
if  bound  by  its  stipulations.     Mere  silence  is  not  sufficient. 

§  15.  Legislation  to  give  effect  to  treaties.  Sometimes  the 
constitution  of  a  state  prohibits  the  making  of  engagements  of 
a  certain  character  without  the  joint  action  of  the  legislative 
department  of  the  government.  This  limii!^tion,  where  not 
expressed  in  the  fundamental  laws  of  the  state,  is  sometimes 
necessarily  implied  in  the  distribution  of  powers  to  its  constitu- 
tional authorities.  Commercial  treaties,  for  example,  which 
have  the  effect  to  change  the  existing  laws  of  trade  and  naviga- 
tion of  the  contracting  parties,  may  require  the  sanction  of  the 
legislative  power  in  each  state  for  their  execution.  In  such 
cases  it  is  usual  to  stipulate  in  the  treaty,  that  it  shall  not  be 
binding  till  the  proper  laws  are  passed  for  carrying  it  into  effect. 


104        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

§  16.  Under  the  Constitution  of  the  United  States.  By  the 
constitution  of  the  United  States,  treaties  made  and  ratified 
by  the  President,  with  the  advice  and  consent  of  the  senate,  are 
declared  to  be  "  the  supreme-  law  of  the  land,"  and  it  seems  to 
be  understood  that  congress  is  bound  to  redeem  the  national  faith 
thus  pledged,  and  to  pass  the  laws  necessary  to  carry  their 
stipulations  into  eifect.  It  is  true  that  their  execution  is 
dependent  upon  such  auxiliary  legislation,  but  it  is,  neverthe- 
less, the  duty  of  every  department  of  government  to  assist 
in  performing  all  the  obligations  properly  incurred  by  the 
whole  state. 

§  17.  Case  of  France  In  1831.  In  regard  to  the  non-fulfillment 
of  the  convention  of  1831,  with  France,  which  was  duly 
ratified,  but  the  chambers  refused  to  vote  the  monies  required, 
Mr.  Wheaton  said :  "  Neither  government  has  anything  to  do 
with  the  auxiliary  legislative  measures  necessary,  on  the  part  of 
the  other  state,  to  give  eifect  to  the  treaty.  The  nation  is 
responsible  to  the  government  of  the  other  nation  for  its  non- 
execution,  whether  the  failure  to  fulfill  it  proceeds  from  the 
omission  of  one  or  other  of  the  departments  of  its  government 
to  perform  its  duty  in  respect  to  it.  The  omission  here  is  on 
the  part  of  the  legislature,  but  it  might  have  been  on  the  part 
of  the  judicial  department." 

§  18.  Case  of  Great  Britain  in  1824.  The  senate  of  the  United 
States,  in  ratifying  the  convention  of  1824,  with  Great  Britain, 
introduced  an  amendment ;  whereupon  Mr.  Canning  refused  to 
accept  it,  on  the  ground  that  the  senate  could  exercise  no  such 
power.  It  will  be  admitted  by  all,  at  the  present  time,  that  Mr. 
Canning  was  in  error,  as  the  power  of  ratification  includes  the 
authority  to  amend  a  treaty. 

§  19.  How  far  a  treaty  operates  propria  vigore.  How  far 
auxiliary  legislation  may  be  necessary  to  carry  into  effect  the 
stipulations  of  treaties,  must  depend,  in  a  measure,  upon  the 
particular  constitution  of  each  state.  The  doctrine  of  the  Brit- 
ish constitution,  as  stated  by  Blackstone,  is,  that  "  whatever  con- 


CH.  VIIL— LEGATION  AND  TREATY.  105 

tracts  the  king  engages  in,  no  other  power  in  the  kingdom  can 
legally  delay,  resist,  or  annul."  Nevertheless,  the  treaty  binds 
nobody  till  its  provisions  are  enacted  by  law,  and  a  treaty  can- 
not be  pleaded  in  the  courts  against  an  act  of  parliament.  In 
the  United  States,  the  constitution  declares  a  treaty  to  be  "  the 
supreme  law  of  the  land."  It  is,  therefore,  regarded  by  the 
courts  as  equivalent  to  an  act  of  congress,  wherever  it  operates 
propria  vigors^  without  the  necessity  of  legislative  provisions ; 
and,  as  such,  all  concerned  are.  bound  to  obey  it,  and,  within 
their  competence,  to  execute  it.  Any  law  conflicting  with  a 
treaty  would  be  declared  by  our  courts  as  unconstitutional.  But 
when  the  terms  of  the  stipulation  import  a  contract,  and  either 
of  the  parties  engages  to  perform  a  particular  act,  the  treaty  ad- 
dresses itself  to  the  political,  rather  than  the  judicial  depart- 
ment of  the  government,  and  the  legislature  must  execute  the 
contract,  before  it  can  become  a  rule  for  the  court. 

§  20.  Real  and  personal  treaties.  General  compacts  between 
nations  have  been  variously  divided  by  text-writers.  One  of 
the  most  important  of  these  divisions  is  into  personal  and  real 
treaties;  the  first  including  only  treaties  of  mere  personal  alli- 
ance, such  as  are  expressly  made  with  a  view  to  the  person  of 
the  reigning  sovereign  or  his  family,  and  the  latter  relating  only 
to  the  things  of  which  they  treat,  without  any  dependence  on 
the  person  of  the  contracting  parties.  The  first  bind  the  state 
during  the  existence  of  the  persons  referred  to,  or  their  public 
connection  with  the  state,  but  expire  with  the  natural  life  or 
public  authority  of  those  who  contract  them,  while  the  latter 
bind  the  contracting  parties  independently  of  any  change  in  the 
constitution  or  rulers  of  the  state. 

§  21.  Other  divisions.  There  are  numerous  other  divisions 
of  treaties  which  have  been  made  with  respect  to  their  object  or 
general  character,  as  equal  and  unequal  treaties ;  treaties  of  gua- 
rantee Siwdi  surety ;  treaties  of  confederation  and  associatioii ;  trea- 
ties of  alliance  and  of  succor  and  subsidy;  treaties  of  cession, 
of  boundaries  J  oi  friendship,  of  commerce,  etc. 

0 


106        INTERNATIONAL   LAW  AND  LAWS  OF  WAB. 

§  22.  Equal  and  imequal  treaties.  Treaties  are  sometimes  di- 
vided by  publicists  into  equal  and  unequal.  Equal  treaties  are 
where  the  contracting  parties  promise  the  same  or  equivalent 
things ;  and  unequal  treaties,  are  where  the  things  promised  are 
neither  the  same  nor  equably  proportioned.  These  different 
classes  of  engagements  are  sometimes  spoken  of  as  bilateral  and 
unilateral.  The  latter,  however,  are  more  properly  applied  to 
treaties  where  promises  are  made  by  only  one  party,  without 
any  corresponding  engagement^,  either  equal  or  unequal,  by  the 
other. 

§  23.  Of  guarantee  and  surety.  Treaties  of  guarantee  and 
of  surety,  are  engagements  by  which  a  state  promises  to  aid  an- 
other against  any  interruption  of  certain  specified  rights,  such 
as  boundaries,  territory,  constitution  or  form  of  government, 
etc.  A  distinction  is  made  between  guarantee  and  surety ;  where 
the  matter  relates  to  things  to  be  done  by  the  party  for  whom 
the  obligation  is  contracted,  the  surety  is  bound  to  make  good 
the  promise  in  default  of  the  principal,  while  the  guarantee  is 
only  obliged  to  use  his  best  endeavors  to  obtain  its  performance 
from  the  principal  himself. 

§  24.  Of  confederation  and  association.  Treaties  of  confedera- 
tion, and  treaties  of  association,  not  only  differ  from  treaties  of 
general  alliance,  but  are  to  be  distinguished  from  each  other. 
Treaties  of  confederation  are  usually  made  for  the  purpose  of 
forming  a  union,  more  or  less  close,  in  reference  to  certain  speci- 
fied objects  with  respect  to  internal  or  external  matters;  as,  for 
instance,  the  German  custom-house  confederation,  and  the 
American  colonial  confederation.  Treaties  of  association  are 
usually  made  for  the  purpose  of  war,  two  or  more  states  asso- 
ciating themselves  together  for  the  purpose  of  carrying  on  joint 
operations  against  a  common  enemy. 

§  25.  Treaties  of  alliance.  Treaties  of  alliance  have  been  sub- 
divided into  different  classes,  such  as  treaties  of  real  and  'per- 
sonal alliance;  of  equal  and  unequal  alliance;  of  general  and 
special  alliance;  of  defensive  and  offensive  alliance,  etc. 


CH.  VIIL— LEGATION  AND  TREATY.  107 

§  26.  Of  amity  or  friendship.  Among  the  ancient  nations 
treaties  were  sometimes  entered  into,  by  which  the  parties 
simply  stipulated  to  remain  friends,  and  to  observe  towards  each 
other  those  pacific  relations  which  international  law  now  impose 
upon  all,  without  the  formality  of  formal  engagements,  such  as 
the  obligations  to  render  justice,  to  accord  satisfaction  for  inju- 
ries, etc.  These  were  called  treaties  of  amity  or  friendship. 
But,  in  modern  times,  this  term  is  usually  applied  to  treaties  of 
recognition,  which  have  for  their  object  the  admission  of  a  new 
body  politic  into  the  family  of  nations,  or  the  recognition  of  a 
new  title  assumed  by  a  state,  or  its  ruler,  already  recognized  as 
sovereign  and  independent. 

§  27.  Of  commerce,  boundaries,  etc.  Treaties  of  commerce  are 
those  which  regulate  the  conditions  of  reciprocal  trade,  and 
define  and  secure  the  imperfect  rights  and  duties  of  commercial 
intercourse.  It  will  be  shown  hereafter  that  such  treaties  usually 
terminate  with  a  declaration  of  war  between  the  contracting 
parties.  Treaties  of  boundary  and  of  cession  are  usually  of  a 
more  permanent  character. 


CHAPTER    IX. 

RIGHTS  AND  DUTIES  OF  PUBLIC  MINISTERS. 

§  1.  Permanent  legations.  The  establishment  of  permanent 
legations  is  generally  dated  from  the  peace  of  Westphalia,  in 
1648.  "There  is  no  circumstance/'  says  Wheaton,  "which 
marks  more  distinctly  the  progress  of  modern  civilization,  than 
the  institution  of  permanent  diplomatic  missions  between  dif- 
ferent states." 

§  2.  No  distinction  in  ancient  times.  The  primitive  law  of 
nations  made  no  distinction  between  the  different  classes  of 
public  ministers ;  but  the  increase  in  their  number  and  duties 
in  modern  times,  has  led  to  numerous  distinctions  in  the  name 
and  rank  of  the  different  public  agents,  as  well  as  in  the  rights 
which  pertain  to  their  respective  offices. 

§  3.  Modern  classification.  Diplomatic  officers  and  their  trains 
in  a  foreign  country  are  now  arranged  in  the  following  order : 
first,  ambassadors ;  second,  envoys  and  ministers  plenipotentiary; 
third,  ministers  resident ;  fourth,  charges  d'affaires ;  fifth,  sec- 
retaries of  legation ;  sixth,  attaches  and  the  families  of  ministers ; 
seventh,  messengers,  couriers,  domestics,  servants,  etc. 

§  4.  Ambassadors,  etc.  Every  public  minister,  in  some  mea- 
sure, represents  the  state  or  sovereign  by  whom  he  is  sent,  as  an 
agent  represents  his  constituent ;  but  an  ambassador  is  consid- 
ered as  peculiarly  representing  the  honor  and  dignity  of  his 
principal,  and,  if  the  representative  of  a  monarchical  govern- 
ment, he  has  been  regarded  as  entitled  to  the  dignity  and  exact 
ceremonial  of  one  representing  the  person  of  his  sovereign. 
The  terms  ordinary  and  extraordinary  are  applied  to  designate 

108 


CH.  IX.— PUBLIC  MINISTERS.  109 

the  time  of  their  intended  residence  and  employment,  whether 
for  an  indeterminate  period,  or  only  for  a  particular  and  extra- 
ordinary occasion.  Papal  legates,  or  nuncios,  at  catholic  courts, 
are  usually  ranked  as  ambassadors. 

§  5.  Envoys,  etc.  Envoys,  and  other  public  ministers  not  in- 
vested with  the  peculiar  character  which  is  supposed  to  be 
derived  from  representing  generally  the  dignity  of  the  state  or 
the  person  of  the  sovereign,  come  next  in  rank  to  ambassadors. 
They  represent  their  principal  only  in  respect  to  the  particular 
business  committed  to  their  charge  at  the  court  to  which  they 
are  accredited.  They  are  variously  named,  as  envoys,  envoys 
extraordinary,  and  ministers  plenipotentiary,  and  internuncios 
of  the  pope. 

§  6.  Ministers,  etc.  In  the  third  class  are  included  ministers, 
ministers  resident,  residents,  and  special  ministers  charged  with 
a  particular  business,  and  accredited  to  sovereigns.  Vattel  thus 
distinguishes  between  a  minister  resident,  and  one  called  simply 
minister,  and  gives  us  the  origin  of  the  name :  "  The  word  resi- 
dent formerly  only  related  to  the  continuance  of  the  minister's 
stay,  and  it  is  frequent  in  history  for  ambassadors  in  ordinary 
to  be  styled  only  residents.  But  since  the  establishment  of 
different  orders  of  ministers,  the  name  of  resident  has  been 
limited  to  ministers  of  a  third  order,  to  the  character  of  which 
general  practice  has  annexed  a  lesser  degree  of  regard.  The 
resident  does  not  represent  the  prince's  person  in  his  dignity, 
but  only  his  affairs."  *  *  "Lastly,  a  custom  still  more 
modern  has  erected  a  new  kind  of  ministers,  without  any  par- 
ticular determination  of  character.  These  are  called  simply 
ministers,  to  indicate  that  they  are  invested  with  the  general 
quality  of  a  sovereign's  mandatories,  without  any  particular 
assignment  of  rank  and  character." 

§  7.  Charges  d'affaires.  Charges  d'affaires,  near  the  courts  of 
the  monarchical  governments  of  Europe,  are  not  accredited  to 
the  sovereigns,  but  to  the  ministers  of  foreign  affairs.  They  are 
divided  into  two  classes,  according  to  the  nature  and  object  of 

10 


110        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

their  appointments,  vi?:.,  charges  d'affaires  ad  hoc,  who  are 
originally  sent  and  accredited  by  their  governments  in  that 
capacity,  and  charges  d'aiFaires  par  interim,  who  are  substituted 
in  the  place  of  the  minister  of  their  respective  nations  during 
his  absence,  or  when  the  office  of  minister  is  vacant. 

§  8.  Secretaries.  The  secretaries  of  embassy  and  legation  are 
especially  entitled,  as  official  persons,  to  the  privileges  of  the 
diplomatic  corps,  in  respect  to  their  exemption  from  local  juris- 
diction. "  The  ambassador's  secretary,''  says  Yattel,  "  is  one 
of  his  domestics ;  but  the  secretary  of  the  embassy  has  his  com- 
mission from  the  sovereign  himself,  which  makes  him  a  kind 
of  public  minister,  and  he,  in  himself,  is  protected  by  the  law 
of  nations,  and  enjoys  immunities  independent  of  the  ambassa- 
dor, to  whose  orders  he  is  indeed  but  imperfectly  subjected, 
sometimes  not  at  all,  and  always  according  to  the  determination 
of  their  common  master." 

§  9.  Attaches  and  minister's  family.  The  attaches,  and  the 
wife  and  family  of  a  minister,  participate  in  the  inviolability 
attached  to  his  public  character.  "  The  persons  in  an  ambassa- 
dor's retinue,"  says  Yattel,  "  partake  of  his  inviolability ;  his 
independency  extends  to  all  his  household ;  these  persons  are  so 
connected  with  him,  that  they  follow  his  fate.  They  depend 
immediately  on  him  only,  and  are  exempt  from  the  jurisdiction 
of  the  country,  into  which  they  would  not  have  come,  but  with 
this  reserve. 

§  10.  Messengers  and  couriers.  "  The  practice  of  nations," 
says  Wheaton,  "  has  also  extended  the  inviolability  of  public 
ministers  to  the  messengers  and  couriers  sent  with  dispatches  to 
or  from  the  legations  established  in  different  countries.  They 
are  exempt  from  every  species  of  visitation  and  search,  in  pass- 
ing through  the  territories  of  those  powers  with  whom  their  own 
government  is  in  amity.  For  the  purpose  of  giving  effect  to 
this  exemption,  they  must  be  provided  with  passports  from  their 
own  government,  attesting  their  official  character ;  and,  in  case 
of  dispatches  sent  by  sea,  the  vessel,  or  aviao,  must  also  be  pro- 


CH.  IX.— PUBLIC  MINISTERS.  HI 

vided  with  a  commission  or  pass.  In  time  of  war,  a  special 
agreement,  by  means  of  a  cartel  or  flag  of  truce,  with  passports, 
not  only  from  their  own  government,  but  from  its  enemy,  is 
necessary  for  the  purpose  of  securing  these  dispatch  vessels  from 
interruption,  as  between  the  belligerent  powers. 

§  11.  Domestics  and  servants.  The  domestics  and  servants  of 
a  minister  also  participate  in  the  inviolability  attached  to  his 
public  character.  "  Did  not  the  domestics,'^  says  Yattel,  "  and 
the  household  of  a  foreign  minister  solely  depend  on  him,  it  is 
known  how  very  easily  he  might  be  molested  and  disturbed  in 
the  exercise  of  his  functions.^^  But  as  this  exemption  of  persons 
of  this  class  sometimes  leads  to  difficulties  with  the  local  police, 
the  municipal  laws  of  some  states,  and  the  usage  of  most  nations, 
now  require  an  official  list  of  the  domestic  servants  of  foreign 
ministers  to  be  communicated  to  the  secretary  or  minister  of 
foreign  affiiirs,  in  order  to  entitle  them  to  any  of  the  privileges 
or  exemptions  pertaining  to  them  by  virtue  of  their  being  depen- 
dents of  a  foreign  embassy  or  legation. 

§  12.  Inviolability  of  ministers.  The  act  of  sending  a 
minister  by  the  one,  and  of  receiving  him  by  the  other,  amounts 
to  a  tacit  compact  between  the  two  states,  that  he  shall  be  sub- 
ject only  to  the  authority  of  his  own  government.  The 
inviolability  of  the  minister  is  founded  upon  mutual  utility, 
growing  out  of  the  necessity  that  such  officers  and  agents  should 
be  entirely  independent  of  the  local  authority,  in  order  to 
properly  fulfill  the  duties  of  their  mission.  Hence,  the  fiction 
of  ex-territoriality  has  been  invented,  by  which  the  minister, 
though  actually  in  a  foreign  country,  is  considered  still  to  remain 
within  the  territory  of  his  own  state.  He  continues  subject  to 
the  laws  of  his  own  country,  both  with  respect  to  his  personal 
stains,  and  his  rights  of  proj^erty ;  and  his  children,  though  born 
in  a  foreign  country,  are  considered  as  natives. 

§  13.  Exemption  from  all  local  jurisdiction.  As  a  consequence 
of  the  sacredness  and  inviolability  of  the  person  of  a  public 
minister,  he  is  entitled  to  an  entire  exemption  from  the  local 


112        INTERNATIONAL   LAW  AND  LAWS  OF   WAR, 

jurisdiction,  both  civil  and  criminal.  This  exemption  com- 
mences the  moment  he  enters  the  territory  of  the  state  to  which 
he  is  sent,  and  continues,  not  only  during  the  whole  time  of  his 
residence,  but  until  he  leaves  the  country,  or  at  least  till  he  loses 
his  official  character,  and  the  protection  due  to  his  office. 
The  state  to  which  he  is  accredited  may  at  any  time  require 
him  to  leave,  either  before  or  after  his  recall  by  his  own 
government.  Sometimes  the  period  within  which  he  must 
leave  is  designated  in  his  letter  of  dismissal;  and,  at  the 
termination  of  that  period,  the  protection  due  to  his  office 
necessarily  ceases. 

§  14.  If  lie  plot  against  the  govemment.  There  are  several 
apparent  exceptions  to  this  rule  of  exemption.  The  first  is, 
where  he  is  found  guilty  of  plotting  against  the  government  to 
which  he  is  accredited.  But  this  is  not  a  real  exception,  for  the 
minister  can  be  neither  tried  nor  punished.  He  may  be  dis- 
missed, or  fo7'cibly  resisted, ,  or  if  necessary,  forcibly  ejected  from 
the  country. 

§  15.  If  he  renounce  Ms  right  of  exemption.  In  the  second 
case,  that  is,  where  the  minister  owes  allegiance  to  the  country 
where  he  resides,  and  has  been  received  on  condition  of  renounc- 
ing any  claim  to  be  exempt  from  the  local  jurisdiction,  a 
question  may  arise  as  to  whether  such  minister  is  to  be  con- 
sidered as  really  the  representative  of  the  country  by  which  he 
is  accredited.  And  if  he  is  to  be  regarded  as  such  representa- 
tive, can  the  renouncement  of  his  privilege  of  exemption  from 
local  jurisdiction  extend  to  the  inviolability  of  his  person  and 
office  ?  In  other  words,  must  not  such  renouncement,  however 
general  in  its  terms,  be  limited  to  his  right  of  ex-territoriality, 
and  with  respect  to  civil  jurisdiction  only  ?  The  better  opinion 
is  that  he  cannot  renounce  his  inviolability,  nor  his  right  of  ex- 
territoriality in  regard  to  criminal  jurisdiction. 

§  16.  If  he  voluntarily  submit  to  local  jurisdiction.  The  third 
apparent  exception  is  where  the  minister  voluntarily  submits  to 
the  local  jurisdiction,  by  renouncing  his  right  of  ex-territoriality. 


C?L  IX.— PUBLIC  MINISTERS.  113 

Some  have  thought  that  such  renouncement  maybe  general,  but 
the  better  opinion  is  that  there  must  be  a  special  submission  in 
the  particular  case,  either  directly  made  or  necessarily  implied 
by  the  act  of  bringing  suit  as  plaintiff,  or  consenting  to  appear 
as  defendant  in  a  civil  action ;  or,  appearing  as  prosecutor,  or 
submitting  himself  to  be  judged,  in  a  criminal  action. 

§  17.  Extent  of  civil  jurisdiction.  In  regard  to  civil  jurisdic- 
tion, the  following  rules  must  be  observed :  1st,  If  a  minister 
renounces  his  privilege  of  exemption,  and  submits  to  local  juris- 
diction by  appearing  in  a  civil  action,  either  as  plaintiff  or 
defendant,  and  judgment  be  rendered  against  him,  he  is  bound 
to  pay  it ;  2d,  If  the  judgment  be  in  his  favor,  and  the  other 
party  appeal  to  a  higher  tribunal,  he  must  submit  to  the  juris- 
diction of  appeal ;  3d,  A  final  judgment  against  a  minister,  can 
only  be  satisfied  out  of  property  which  he  possesses  separate 
and  distinct  from  his  diplomatic  character,  and  no  proceedings 
can  be  taken  against  his  jocrson,  or  against  property  privileged 
by  the  law  of  nations. 

§  18.  Of  criminal  jurisdiction.  In  regard  to  criminal  jurisdic- 
tion, the  minister  appears  either  charged  with  crime  himself,  or 
charging  anotlier  with  crime.  In  both  cases  he  might,  according 
to  the  laws  of  some  countries,  be  sentenced  to  fine  and  imprison- 
ment. But  this  sentence  could  not  be  executed  without  affecting 
the  inviolability  of  his  person.  Before  this  can  be  done,  he 
must  renounce  his  official  character  and  cease  to  be  a  public 
minister. 

§  19.  Public  ministers,  how  punished.  But  if  a  minister  is 
exempt  from  local  jurisdiction  so  long  as  he  continues  in  office, 
how  is  he  to  be  punished  for  offenses,  and  how  are  his  creditors 
to  obtain  justice  ?  The  answer  is  obvious.  For  his  offenses  he 
may  be  dismissed  and  sent  out  of  the  countiy.  A  demand  may 
be  made  upon  the  government  which  sent  him  that  he  be  pun- 
ished, or  that  he  be  made  to  do  justice  to  those  whom  he  has 
WTonged. 

§  20.  Dependents,  how  punished.  In  former  times,  ministers 
10  ^-  p 


114        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

claimed  and  sometimes  exercised  the  right  to  try  and  punish 
their  dependents.  But  it  is  now  admitted  that  no  foreign  power 
can  set  up  a  tribunal  for  the  trial  and  punishment  of  persons 
within  another  state.  For  offenses  which  his  dependents  may 
commit  against  the  laws  of  his  own  country,  the  minister  should 
order  them  home,  and  for  those  against  the  country  in  which  he 
resides,  he  should  dismiss  them  so  as  to  make  them  amenable  to 
the  local  tribunals.  Should  he  refuse  or  neglect  to  do  this,  he 
himself  may  be  dismissed  and  sent  out  of  the  country. 

§  21.  Testimony  of  ministers,  etc.  Ministers  and  their  de- 
pendents cannot  be  compelled  to  appear  in  court  to  give  their  testi- 
mony ;  and  it  sometimes  happens  that  they  are  the  only  or  most 
important  witnesses.  The  government  may,  in  such  cases,  re- 
quest their  attendance,  and  if  they  refuse,  may  ask  their  recall 
or  dismiss  them.  In  1856,  the  government  of  the  United 
States  of  America  requested  the  recall  of  the  minister  of  the 
Netherlands,  for  having  refused  to  appear  before  the  court,  in 
the  city  of  Washington,  to  give  his  testimony  in  a  criminal  cause 
which  was  then  pending,  and  in  which  this  minister  was  a 
most  important  witness. 

§  22.  Exemption  of  minister's  house,  etc.  The  independence  of 
a  public  minister  would  be  very  imperfect,  if  the  house  in  which 
he  lived,  and  his  personal  effects  or  movables,  were  not  entirely 
exempt  from  the  local  jurisdiction.  Otherwise,  he  might  be 
disturbed  under  a  thousand  pretenses,  his  papers  searched,  his 
secrets  discovered,  and  his  person  exposed  to  insults.  Hence, 
his  house  is  inviolable,  and  cannot  be  entered  without  his  per- 
mission, by  police,  custom-house,  or  excise  officers,  nor  can 
troops  be  quartered  in  it.  For  the  same  reasons,  his  coaches  and 
carriages  are  usually  exempt  from  all  local  jurisdiction  and  ex- 
amination. But  the  abuse  of  this  privilege,  on  the  part  of 
ministers,  by  making  their  houses  an  asylum  for  fugitives  from 
justice,  and  their  carriages  a  means  of  effecting  the  escape  of 
guilty  persons,  may  justify  their  dismissal  or  forcible  ejection 
from  the  countrv. 


OH.  IX.— PUBLIC  MINISTERS.  115 

§  23.  His  other  real  estate,  etc.  But  the  real  property  of  a 
minister,  other  than  his  dwelling  situate  within  the  territory  of 
the  government  to  which  he  is  accredited,  and  the  personal  pro- 
perty of  which  he  may  be  possessed,  as  a  merchant,  or  private 
person,  carrying  on  trade  or  other  business,  or  in  a  fiduciary 
character  as  an  executor,  etc.,  are  not  exempt  from  the  operation 
of  the  local  laws  and  local  jurisdiction.  The  reason  of  this  is, 
that  the  minister  does  not  hold  such  lands  and  goods  by  virtue 
of  his  office ;  they  are  not  annexed  to  his  person  so  as,  like  him- 
self, to  be  reputed  out  of  the  territory.  Every  dispute  or  suit 
respecting  them,  must  be  carried  on  in  the  tribunals  of  the 
country,  and  they  are  subject  to  the  ordinary  process  and  pro- 
ceedings of  the  courts,  even  of  attachment  and  seizure.  But  in 
all  such  proceedings  the  minister  is  to  be  summoned  and  pro- 
ceeded against  as  an  absent  person,  he  being  reputed  as  out  of 
the  country;  no  process  can  be  served  on  him  personally. 

§  24.  Of  taxes  and  duties.  The  minister's  person,  and  per- 
sonal effects,  are  not  liable  to  assessment  and  taxation.  But  his 
real  property,  and  his  movables,  (not  connected  with  his  mis- 
sion or  embassy)  are  all  subject  to  taxation,  according  to  the 
municipal  laws  of  the  country.  By  the  usage  of  most  nations, 
he  is  exempt  from  the  payment  of  duties  on  the  importation  of 
articles  for  his  own  personal  use,  and  that  of  his  family.  But 
this  latter  exemption  is  sometimes  limited  to  a  fixed  sum  per 
annum,  or  during  the  continuance  of  the  mission.  So,  while 
the  ambassador  is  exempt  from  the  capitation  tax,  and  every 
personal  imposition  relating  to  the  character  or  quality  of  a 
subject  of  the  state,  he  is  expected  to  pay  tolls,  postage,  etc.,  and 
the  ordinary  duties  imposed  on  the  goods  and  provisions  he  may 
use. 

§  25.  Freedom  of  religious  worship.  A  minister,  resident  in 
a  foreign  country,  is  entitled  to  the  privilege  of  religious  wor- 
ship according  to  the  peculiar  forms  of  his  own  faith,  altliough 
it  may  not  be  generally  tolerated  by  the  laws  of  the  state  to 
which  he  is  accredited.     But  this  right  is,  in  strictness,  confined 


116        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

to  his  own  residence ;  he  can  do  what  he  pleases  within  his  own 
walls,  and  nobody  has  a  right  to  object  or  interfere.  "  But  if 
the  sovereign  of  the  country  where  he  resides,  has  good  reasons 
for  not  permitting  him  to  exercise  his  religion  in  a  manner  any 
way  public,  this  sovereign  is  not  to  be  blamed,  much  less  ac- 
cused of  offending  against  the  law  of  nations/' 

§  26.  Letters  of  credence.  Every  diplomatic  agent,  in  order 
to  be  received  in  that  character,  and  to  enjoy  the  privileges  and 
honors  attached  to  his  rank,  must  be  furnished  with  a  letter  of 
(yredenee.  Such  letter  usually  states  the  general  object  of  the 
mission  or  appointment,  the  official  character  of  the  agent,  and 
requests  that  full  faith  and  credit  may  be  given  to  his  acts  and 
deeds,  as  such  agent  of  his  government.  The  execution  of  this 
letter  depends  upon  the  municipal  laws  of  the  state  issuing  it, 
and  upon  the  official  rank  of  the  agent.  In  the  case  of  minis- 
ters of  the  first  three  classes,  the  letter  is  usually  signed  by  the 
sovereign  or  chief  magistrate  of  the  state  which  sends  them,  and 
is  addressed  to  the  sovereign  or  chief  magistrate  of  the  state  to 
which  they  are  delegated.  In  the  case  of  subordinate  agents,  it 
is  usually  addressed  by  the  minister  or  secretary  of  foreign  af- 
fairs, to  the  department  of  foreign  affiiirs  of  the  other  govern- 
ment. 

§  27.  Full  power.  The  full  power  authorizing  the  minister 
to  negotiate  is  sometimes  inserted  in  the  letter  of  credence,  but 
it  is  more  usually  drawn  up  in  the  form  of  letters  patent.  In 
general,  ministers  sent  to  a  congress  or  convention  of  nations, 
are  not  furnished  with  a  letter  of  credence,  but  with  letters 
patent,  or  a  full  power,  of  which  they  reciprocally  exchange 
copies  with  each  other  on  the  assembling  of  the  congress.  But 
a  full  power  to  negotiate  does  not  necessarily  bind  the  states  to 
the  treaty  which  may  be  signed  by  the  minister  under  such 
power.  It  not  unfrequently  happens  that  the  power  of  ratify- 
ing or  rejecting  a  treaty  is  vested  in  other  authorities  than 
that  which  conferred  the  power  to  negotiate.  Thus,  in  the 
United  States,  the  power  to  negotiate  is  conferred  by  the  Presi- 


CH.  IX.— PUBLIC  MINISTERS.  117 

dent,  but  no  treaty  is  binding  till  confirmed  by  two-thirds  of 
the  senate. 

§  28.  Instructions.  The  instructions  of  a  minister,  from  his 
own  government,  are  for  his  own  direction  only,  and  are  not  to 
be  communicated  to  the  government  or  congress  to  which  he  is 
delegated.  He  cannot  be  compelled  to  show  them.  He,  how- 
ever, may  be  directed  by  his  own  government  to  communicate 
them  either  partially  or  in  extenso,  or  it  may  be  left  to  his  own 
discretion  to  communicate  them  or  not,  as  he  may  deem  expedient. 

§  29.  Notification  of  appointments.  It  is  the  duty  of  every 
diplomatic  agent,  on  his  arrival  at  his  destined  post,  to  notify 
the  government  to  which  he  is  accredited.  In  case  of  a  minis- 
ter of  one  of  the  higher  classes,  he  is  furnished  with  a  duly 
authenticated  copy  of  his  letter  of  credence,  which  is  delivered 
to  the  minister  of  foreign  affairs,  requesting  an  audience  of  the 
sovereign  or  chief  magistrate  of  the  state,  for  the  purpose  of 
delivering  the  original  letter  of  credence.  Charges  d'affaires, 
and  other  subordinate  agents,  notify  their  arrival  to  the  minister 
of  foreign  affairs  by  letter,  at  the  same  time  requesting  an 
audience  of  the  minister  for  the  purpose  of  delivering  their  let- 
ters to  him. 

§  30.  Presentation  and  reception.  The  ceremony  of  solemn 
entry,  which  was  formerly  practiced  with  respect  to  ambassadors 
and  other  ministers  of  the  first  class,  is  noAV  usually  dispensed 
with,'  and  they  are  received  in  a  private  audience  in  the  same 
manner  as  other  ministers.  On  their  presentation,  by  the  min- 
ister of  foreign  affairs,  they  usually  deliver  their  original  letter 
of  credence,  (which  is  returned  to  them,)  and  pronounce  a  short 
complimentary  discourse,  which  is  replied  to  by  the  sovereign, 
or  chief  of  the  state,  to  whom  they  are  presented.  Such  pre- 
sentation and  reception  is  a  sufficient  acknowledgement  of  their 
official  character  to  enable  them  to  enter  on  their  functions. 
Each  court  has  its  particular  ceremonial  for  the  presentation  and 
reception  of  foreign  ministers,  which  such  ministers  conform  to 
as  a  matter  of  etiquette. 


118        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

§  31.  Passports  and  safe-conduct.  Although  the  minister's 
character  is  not  declared  in  its  whole  extent,  so  as  to  secure  to  him 
the  enjoyment  of  all  his  rights,  till  he  has  had  his  audience  and 
been  acknowledged  and  admitted  by  the  chief  authority  of  the 
state  to  which  he  is  accredited,  he  is,  nevertheless,  under  the 
protection  of  the  law  of  nations  from  the  date  of  receiving  his 
letter  of  credence,  or  official  document  of  appointment.  In 
passing  through  the  country  to  which  he  is  sent,  in  order  to 
reach  his  destined  post,  he  only  requires,  in  time  of  peace,  a 
passport  from  his  own  government,  certifying  to  his  official 
character.  But  in  time  of  war,  he  must  be  provided  with  a 
safe  conduct,  or  passport,  from  the  government  of  the  state 
with  which  his  own  country  is  in  hostility,  to  enable  him  to 
trayel  securely  through  its  territories.  A  refusal  to  give  such 
safe  conduct  is  a  virtual  refusal  to  receive  or  admit  such 
ministers. 

§  32.  Passage  through  other  states.  In  passing  through  the 
territory  of  a  friendly  state,  other  tlian  that  of  the  government 
to  which  he  is  accredited,  a  public  minister,  or  other  diplomatic 
agent,  is  entitled  to  the  respect  and  protection  due  to  his  official 
character,  though  not  invested  with  all  the  privileges  and  im- 
munities which  he  enjoys  in  the  country  to  whose  government 
he  is  sent.  He  has  a  right  of  innocent  passage  through  the 
dominions  of  all  states  friendly  to  his  own  country,  and  to  the 
honors  and  protection  which  nations  reciprocally  owe  to  each 
other's  diplomatic  agents,  according  to  the  dignity  of  their  rank 
and  official  character.  If  the  state  through  which  he  purposes 
to  pass  has  just  reason  to  suspect  his  object  to  be  unfriendly,  or 
to  apprehend  that  he  will  abuse  this  right  by  inciting  its  people 
to  insurrection,  furnishing  intelligence  to  its  enemies,  or  plotting 
against  the  safety  of  the  government,  it  may  very  properly,  and 
without  just  offense,  refuse  such  innocent  passage. 

§  33.  Termination  of  public  missions.  The  public  mission  of 
a  minister  may  be  terminated  in  various  ways,  as,  for  example, 
by  his  death,  by  the  expiration  of  the  period  of  his  appoint- 


CH.  IX,— PUBLIC  MINISTERS.  119 

ment,  by  the  termination  of  the  special  negotiation  or  object  of 
the  missionj  by  his  recall,  by  the  death  of  his  sovereign,  or  a 
radical  change  in  the  sovereignty  or  government  of  his  state,  by 
a  change  in  his  diplomatic  rank,  by  his  own  withdrawal,  and 
termination  of  his  mission,  or  by  his  dismissal  by  the  govern- 
ment to  which  he  is  accredited.  Custom  has  established  par- 
ticular forms  of  proceedings  applicable  to  each  case,  which 
forms  are  followed  as  a  matter  of  etiquette,  rather  than  of  strict 
right  or  obligation. 

§  34.  By  death  of  the  minister.  Where  the  mission  is  termi- 
nated by  the  death  of  the  minister,  the  secretary  of  legation,  or, 
if  there  be  no  secretary,  the  minister  of  some  allied  or  friendly 
power,  places  seals  upon  his  effects,  takes  charge  of  his  body, 
and  makes  the  arrangements  for  its  interment,  or  for  sending  it 
home.  The  local  authorities  do  not  interfere,  unless  in  case  of 
necessity.  All  the  honors  and  respect  due  to  the  minister  while 
living,  are  usually  paid  to  his  remains ;  and  although,  in  strict- 
ness, the  personal  privileges  of  his  dependents  expire  with  the 
termination  of  his  mission  by  death,  the  usage  of  nations  extends 
to  the  widow,  family,  and  domestics  of  a  deceased  minister,  for 
a  limited  period,  the  same  immunities  which  they  enjoyed  during 
his  lifetime.  The  validity  of  his  testament,  and  disposition  of 
his  movable  property,  ah  intestato,  must  be  determined  by  the 
laws  of  his  own  country,  on  the  principle  of  the  ex-territoriality 
of  his  residence. 

§  35.  By  his  recall.  Where  the  mission  is  terminated  by  an 
ordinary  formal  letter  of  recall,  nearly  the  same  formalities  are 
observed  as  on  the  arrival  of  the  minister  at  the  court  to  which 
he  is  accredited.  He  delivers  a  copy  of  his  letter  of  recall  to 
the  minister  or  secretary  of  foreign  affairs,  and  asks  an  audience 
of  the  sovereign  or  chief  executive,  for  the  purpose  of  taking 
leave.  At  this  audience  he  delivers,  or  exhibits  the  original  of 
his  recall,  and  takes  his  leave  with  a  complimentary  address 
suited  to  the  occasion,  and  to  which  a  complimentary  reply  is 
usually   made.     But   if  he   is   recalled   at   the   request  of  the 


120        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

government  to  which  he  is  accredited,  for  misconduct  or  other 
objections,  he  would  neither  ask  nor  receive  an  audience  of 
leave. 

§  36.  By  expiration  of  term,  etc.  Where  the  mission  is  ter- 
minated by  the  expiration  of  the  minister's  appointment,  as  in 
the  case  of  embassies  of  mere  ceremony,  or  of  special  negotia- 
tions which  have  been  accomplished  or  have  failed,  a  formal 
letter  of  recall  is  not  usually  sent  to  the  minister  by  his  own 
government.  But  the  formalities  of  taking  leave  are  nearly  the 
same  as  in  case  of  an  ordinary  recall  by  letter.  Where  the 
diplomatic  rank  of  the  nrinister  is  raised  or  lowered,  as  where 
an  envoy  becomes  an  ambassador,  or  an  ambassador  has  fulfilled 
his  functions  as  such,  and  is  to  remain  as  a  minister  of  the 
second  or  third  class,  he  presents  his  letter  of  recall,  and  a  letter 
of  credence  in  his  new  character. 

§  37.  By  change  of  government.  Where  the  mission  termi- 
nates by  the  decease  or  abdication  of  the  minister's  own  sove- 
reign, or  the  sovereign  to  whom  he  is  accredited,  it  is  usual  for 
him  to  await  a  renewal  of  his  letters  of  credence.  In  the  former 
case,  a  mere  notification  of  the  continuance  of  his  appointment 
is  sent  by  the  successor  of  the  deceased  or  deposed  sovereign, 
and  in  the  latter,  new  letters  of  credence  are  sent  to  the  minister 
to  be  presented  to  the  new  ruler.  If  a  radical  change  should 
take  place  in  the  character  or  organization  of  his  own  govern- 
ment, it  would  be  the  duty  of  the  minister  to  await  new  letters 
of  credence,  or  a  ratification  of  his  appointment  by  the  new 
government.  The  government,  to  which  he  is  accredited,  would 
be  justified  in  declining  any  new  negotiations  with  him  without 
such  ratification,  or  new  appointment,  or,  at  least,  without  some 
evidence  of  a  renewal  or  continuance  of  his  powers. 

§  38.  By  his  dismissal.  When,  on  account  of  the  measures 
of  his  government,  the  court  at  which  he  resides  thinks  fit  to 
discontinue  all  diplomatic  intercourse  with  a  minister,  this  is 
usually  done  by  a  diplomatic  note  informing  him  of  the  fact, 
and  offering  him  his  passport.     But  when  the  court,  at  which 


CH.  IX.— PUBLIC  MINISTERS.  121 

he  resides,  thinks  fit  to  send  him  away  on  account  of  his  own 
misconduct,  it  is  usual  to  notify  his  government  that  he  is  no 
longer  an  acceptable  representative,  and  to  request  his  recall. 
If  the  oifence  be  of  an  aggravated  character,  he  may  be  dis- 
missed without  waiting  for  a  recall  by  his  own  government. 
The  government  asking  such  recall,  may,  or  may  not,  at  its  own 
option,  state  the  reasons  for  the  request ;  they  cannot  be  re- 
quired. It  is  sufficient  that  he  is  no  longer  acceptable.  In 
such  a  case,  international  courtesy  would  require  his  immediate 
recall.  If,  however,  the  request  should  not  be  complied  with, 
his  dismissal  would  follow  as  a  matter  of  course. 

§  39.  Respect  due  to  local  authorities.  All  ministers  and  dip- 
lomatic agents,  of  whatever  description,  are  bound  to  respect  the 
government  and  authorities  of  the  country  where  they  reside. 
Any  disrespect,  on  the  part  of  such  officei-s  or  agents,  are  good 
and  sufficient  causes  for  asking  their  recall ;  or,  in  aggravated 
cases,  for  dismissing  them  and  sending  them  out  of  the  country. 
11  Q 


CHAPTER    X. 

OF  CONSULS  AND   COMMERCIAL  AGENTS. 

§  1.  Origin  of  the  institution  of  consuls.  The  institution  of  a 
foreign  consulate  originated  in  the  earlier  part  of  the  middle 
ages,  in  sending  officers  or  persons  from  one  country  or  city  to 
the  sea-ports  and  towns  of  foreign  states,  for  the  purpose  of  pro- 
tecting the  national  commerce,  especially  in  matters  of  ship- 
wreck, and  of  adjusting  disputes  between  sailors  and  merchants 
of  their  own  country.  In  the  absence  of  regular  ambassadors, 
or  other  public  ministers,  these  commercial  agents  sometimes 
acted  in  the  capacity  of  representatives  and  diplomatic  agents 
of  their  respective  states,  and  not  unfrequently  assumed  and 
exercised  jurisdiction  and  authority  over  the  merchants  and  citi- 
zens of  their  own  countries  in  foreign  ports  and  cities. 

§  2.  General  powers  in  modem  times.  But  since  the  establish- 
ment of  permanent  diplomatic  delegations  the  powers  of  consuls, 
in  Christian  countries,  are  usually  limited  to  a  general  vigilance 
over  the  interests  of  shipping  and  navigation  of  their  nation  at  a 
particular  locality. 

§  3.  Consular  organization.  The  consular  organization  is 
usually  divided  into  consuls-general,  consuls,  vice-consuls,  and 
consular  or  commercial  agents.  Some  states  have  only  the  single 
office  of  consuls.  Consuls-general  exercise  their  functions  over 
several  places,  and  sometimes  over  a  whole  country,  giving  or- 
ders and  directions  to  all  consuls,  vice-consuls,  and  commercial 
agents  of  their  government  within  the  same  state.  English 
vice-consuls  are  usually  appointed  by  the  consul,  subject  to  the 
approbation  of  the  foreign  secretary  of  state.     Other  countries 

122 


CH.  X.— CONSULS  AND  COMMERCIAL  AGENTS.        123 

have  adopted  a  different  system  of  appointment.  This  depends 
entirely  upon  the  institutions  of  the  particular  state,  and  is  not 
governed  by  any  rule  of  international  jurisprudence. 

§  4.  Commission  and  exequatur.  A  consul  receives  a  commis- 
sion from  the  proper  authority  of  his  own  government,  a  dupli- 
cate, or  properly  authenticated  copy,  being  forwarded  to  the 
ambassador  or  minister  of  the  same  state,  at  the  court  of  the 
country  in  which  the  consul  is  to  officiate,  in  order  that  he  may 
apply  for  the  usual  exeqitatur,  to  enable  him  to  enter  officially 
upon  his  consular  duties.  This  is  usually  issued  under  the  great 
seal  of  state,  and  made  public  for  the  information  of  all  con- 
cerned. On  arriving  at  his  post,  the  consul  usually  furnishes 
the  principal  public  authority  of  the  place  with  a  copy  of  his 
commission,  stamped  with  his  consular  seal.  On  receiving  his 
exequatur y  he  becomes  entitled  to  exercise  the  authority,  and  en- 
joy the  privileges,  immunities,  and  exemptions  due  and  per- 
taining to  his  office. 

§  5.  Consuls  have  no  diplomatic  character.  Consuls  have 
neither  the  representative  nor  diplomatic  character  of  public 
ministers.  They  have  no  right  of  ex-territoriality,  and  there- 
fore cannot  claim,  either  for  themselves,  their  families,  houses, 
or  property,  the  privileges  of  exemption  which,  by  this  fiction 
of  law,  are  accorded  to  diplomatic  agents  who  are  considered  as 
representing,  in  a  greater  or  \^s  degree,  the  sovereignty  of  the 
state  which  appoints  them.  They,  however,  are  officers  of  a 
foreign  state,  and  when  recognized  as  such  by  the  exequatur  of 
the  state  in  which  they  exercise  their  functions,  they  are  under 
the  special  protection  of  the  law  of  nations.  Consuls  are  some- 
times made  also  charges  d'affaires,  in  which  cases  they  are  fur- 
nished with  credentials,  and  enjoy  diplomatic  privileges ;  but 
these  result  only  from  their  character  as  chargSs,  and  not  as 
consuls. 

§  6.  Are  subject  to  local  jurisdiction.  Consuls  are  amenable, 
generally,  to  the  civil  and  criminal  jurisdiction  of  the  country 
in  which  they  reside,  and  their  property  and  effects  are  subject 


124        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

to  the  recourse  of  execution  and  process  of  the  local  courts.  It 
was  at  one  time  contended  that  they  should  be  exempt  from 
criminal  jurisdiction,  but  the  position  was  neither  sustained  in 
practice,  nor  in  the  doctrines  of  text- writers.  Consuls  are  sub- 
ject to  the  payment  of  taxes,  and  municipal  imposts  and  duties 
on  their  property  or  trade,  and  to  the  municipal  charges  inci- 
dent to  their  personal  status,  and  from  which  they  are  not  ex- 
empted by  the  privileges  of  their  office. 

§  7.  They  have  no  rank  except  among  themselves.  Consuls, 
says  Phillimore,  "  have  no  claim  to  any  foreign  ceremonial  or 
mark  of  respect,  and  no  right  of  precedence,  except  among 
themselves,  according  to  the  rank  of  the  different  states  to  which 
they  belong.'^  But,  as  already  stated,  the  present  tendency  is 
to  consider  all  sovereign  and  independent  states  as  equal  in 
rank,  with  respect  to  ceremonial  and  precedence,  and  consuls  of 
foreign  states,  of  the  same  rank  in  the  consular  hierarchy,  should 
have  precedence  among  themselves,  according  to  the  dates  of 
their  respective  exequaturs. 

§  8.  Enjoy  certain  rights  and  exemptions.  Although  consuls 
do  not  enjoy  the  rights  accorded  by  the  law  of  nations  to  public 
ministers,  they  are,  nevertheless,  entitled  to  certain  rights  of 
comity,  and  to  certain  privileges  of  exemption  from  local  and 
political  obligations,  which  cannot  be  claimed  by  private  indi- 
viduals,— rights  and  privileges  which  are  incident  to  their  of- 
fice, and  Avhich  result  from  their  character  as  the  duly  appointed 
and  recognized  officers  of  a  foreign  state.  Nor  are  these  ex- 
emptions limited  to  the  officers  themselves;  they  extend,  in  a 
certain  degree,  to  their  houses  and  to  public  property  in  their 
charge.  Thus,  they  may  raise  the  flag,  and  place  the  arms  of 
the  country  they  represent  over  their  gates  and  doors ;  and,  al- 
though their  houses  are  liable  to  domiciliary  visit  and  search, 
the  papers  and  archives  of  their  consulate  are,  in  general,  ex- 
empt from  seizure,  or  detention,  and  soldiers  cannot  be  quar- 
tered in  their  consular  residence. 

§  9.  Office  distinguished  from  status  of  officers.  In  determining 


CH.  X.— CONSULS  AND  COMMERCIAL  AGENTS.        125 

questions  of  consular  privileges  and  exemption,  we  must  dis- 
tinguish between  those  which  belong  to  the  office  held,  and  the 
modifications  or  exceptions  resulting  from  the  personal  status  or 
occupation  of  the  incumbent. 

§  10.  When  they  are  foreigners.  There  seems  to  be  little  or 
no  difficulty  in  distinguishing  between  the  exemptions  of  the 
different  classes  of  foreign  consuls  who  owe  no  allegiance  to  the 
state  in  which  they  reside.  Those  who  hold  no  property,  en- 
gage in  no  business,  and  have  no  domicil  in  the  country,  have 
the  personal  exemptions  and  disabilities  of  aliens  who  are  mere 
sojourners.  Those  who  hold  real  estate,  engage  in  business,  and 
have  a  fixed  residence,  are  considered  as  foreigners  domiciled  in 
the  country,  and  their  consular  privileges,  or  the  privileges 
which  pertain  to  their  office,  whatever  they  may  be,  do  not  ex- 
tend to  their  property  or  trade  so  as  to  change  its  national  char- 
acter. As  neither  of  these  classes  owe  personal  allegiance  to 
the  country  in  which  they  reside,  there  can  be  no  conflict  be- 
tween the  duties  of  their  allegiance  and  the  duties  of  their 
office. 

§  11.  When  citizens  of  the  country.  But  where  citizens  of  the 
country  exercise  the  functions  of  foreign  consuls,  there  may  be 
such  conflict,  and  it  becomes  material  to  ascertain  how  far  the 
office  which  they  hold  exempts  them  from  the  performance  of 
the  political  and  municipal  duties  of  citizens.  It  is  evident 
that  they  can  claim  none  of  the  exemptions  which  the  other  two 
classes  enjoy  in  virtue  of  the  personal  status  as  aliens;  but  it  is 
believed  that  they  are  entitled  to  those  which  pertain  to  their 
office,  and  which  are  necessary  for  the  due  performance  of  its 
duties.  Some  have  claimed  that  such  consuls  are  exempt  from 
no  local  duty,  unless  exempted  by  the  local  laws  of  their  own 
state;  and  that  without  such  statutory  exemption,  they  are  liable 
to  do  militia  duty,  jury  duty,  etc.  But  the  better  opinion  is 
that  they  are  not  so  liable,  because  the  performance  of  such  du- 
ties might  interfere  with  the  exercise  of  their  consular  functions. 

§  12.  Jurisdiction  over  consuls  in  United  States.  By  the  con- 
11  * 


126        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

stitution  and  laws  of  the  United  States,  the  federal  courts  have 
exclusive  jurisdiction  of  all  suits  against  consuls  and  vice-con- 
suls, with  certain  enumerated  exceptions.  It  has  been  decided 
that  where  a  foreign  consul  is  sued  jointly  with  others,  his  co- 
defendants  are  also  brought  within  the  jurisdiction  of  the  fed- 
eral courts. 

^  §  13.  Powers  of  arbitration.  Consuls  in  Christian  states  have 
no^ivil  or  criminal  jurisdiction  over  their  fellow-countrymen, 
unless  given  by  treaty ;  but,  if  so  authorized  by  the  laws  of  their 
own  country,  they  are  usually  permitted  to  exercise  a  kind  of 
quasi-jurisdiction  or  arbitration  in  certain  matters  of  trade  and 
commerce.  Their  awards  in  such  cases  may  be  binding  in  the 
tribunals  of  their  own  country,  although  not  in  those  of  the 
places  of  their  residence. 

*/  §  14.  Marriages  and  divorces  by  consuls.  Marriages  and 
divorces  by  consuls,  are  not  valid  in  international  law,  nor  as  a 
general  rule,  even  in  their  own  countries,  for,  as  the  consul  has 
no  ex-territoriality,  and  is  not  an  officer  of  the  local  government, 
the  marriage  contract,  or  its  dissolution,  is  not  made  by  the  lex 
loeiy  either  of  the  country  where  the  parties  are,  or  of  that  to 
which  they  belong.  It  has,  therefore,  been  held  by  the  Attorney- 
General  of  the  United  States,  that  an  American  consul,  in  a 
Christian  country,  has  no  power  to  celebrate  marriages  between 
either  foreigners  or  Americans.  As  will  be  shown  hereafter,  a 
different  rule  applies  to  consuls  in  the  east. 

§  15.  The  granting  of  passports.  Consuls  are  usually  allowed 
to  grant  passports  to  subjects  of  their  own  country  living  within 
the  range  of  their  consulates,  but  not  to  foreigners.  They,  how- 
ever, are  usually  required  to  put  their  vise  upon  the  passports 
of  foreigners  who  embark  from  the  place  of  their  consulate,  to 
go  to  their  (the  consuls')  country.  But  this,  again,  is  a  matter 
of  local  law  of  their  own  state.  Passports,  to  be  valid,  should 
be  given  by  the  proper  minister  of  the  country  of  the  person 
using  them,  or,  at  least,  by  the  minister  of  that  country  at  the 
court  of  the  state  in  wliich   they  are  to  be  used ;  usage  has, 


CH.  X.— CONSULS  AND  COMMERCIAL  AGENTS.         127 

nevertheless,  extended  the  same  eiFect  to  passports  issued  by 
consuls,  within  their  consular  jurisdiction. 
A^%  16.  Certificates,  etc.      Consuls  are  frequently  required  to 
give  certificates  relating  to  matters  of  fact  connected  with  the 
commerce  of  their  fellow-countrymen,  and  of  merchant  vessels 
of  their  own  state.  '  Such  certificates,  under  seal,  receive  full 
faith  and  credit  in  the  courts  of  the  country  where  such  fact  is 
collaterally  called  in  question.     The  laws  of  most  states  make  it 
the  duty  of  their  consuls  to  take  acknowledgement  of  deeds  for 
the  conveyance  of  real  estate,  the  depositions  of  witnesses  in 
civil  causes,  etc. ;  but  the  legal  effect  to  be  given  to  such  acts 
must,  in  general,  be  determined  by  municipal  law. 
A-  §  17.  They  can  afford  no  refuge  from   process.     Although 
within  the  general  duties  and  rights  of  consuls  to  watch  over 
the  interests  of  their  own  countrymen,  it  must  be  remembered 
that  they  can  afford  no  protection  against  due  process  of  the 
laws  of  the  country  where  they  reside,  and  any  attempt  to  evade 
or  resist  their  execution  would  constitute  an  offense,  for  which 
the  offending  consul  may  be  dismissed  or  punished.     The  only 
protection  he  can  afford,  even  to  his  own  countrymen,  in  such 
cases,  is  to  see  that  the  laws  are  properly  administered ;  and  if 
injustice  is  done  to  his  fellow-countrymen,  by  depriving  them 
of   the   ordinary   right   of   trial,   or   by   distinguishing   unfa- 
vorably between  them  and  citizens  of  the  state  where  he  resides, 
and  to  which  the  tribunals  belong,  he  should  make  representa- 
tion to  his  own  government,  to  whom  it  belongs  to  require 
explanation  and  satisfaction.     He  has  no  diplomatic  authority 
to  demand  either  the  one  or  the  other. 
^^18.  Engaging  in  trade.     Some  states  permit,  and  others  for- 
bid, their  consuls  to  trade.     As  already  stated,  a  consul  engaged 
in  trade  is,  in  all  that  concerns  that  trade,  subject  to  the  local 
laws,  and  to  the  local  jurisdiction,  in  the  same  way  as  a  native 
merchant.     Their  consular  character  gives  them  no  privileges 
in  trade,  either  in  peace  or  war.     "  The  character  of  consul," 
says  Lord  Stowell,  "  does  not  protect  that  of  a  merchant,  united 


128        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

in  the  same  person."  It  is  certainly  a  very  objectionable  prac- 
tice to  permit  consuls  to  engage  in  trade,  and  has  so  been  re- 
garded by  the  best  writers  on  international  law. 
i^^%  19.  Consuls  of  Christian  states  in  the  East.  As  already  re- 
marked, the  powers,  privileges  and  immunities  of  European 
and  American  consuls,  in  Mohammedan  and  unchristian  do- 
minions, are  very  different  from  those  of  consuls  in  Christian 
countries.  This  has  resulted,  in  part,  from  their  having  there 
retained  the  general  diplomatic  character  and  prerogatives  of 
jurisdiction,  which,  in  earlier  times,  they  possessed  everywhere, 
and,  in  part,  from  the  stipulation  of  treaties. 

§  20.  Over  their  own  countrymen.  Such  jurisdiction,  both 
civil  and  criminal,  being  conceded  to  the  consuls  over  their 
countrymen,  to  the  exclusion  of  the  local  magistrates  and  tribu- 
nals, it  depends  upon  the  laws  of  their  own  states  how  it  shall 
be  exercised,  and  what  penalties  or  punishments  may  be  im- 
p6§^d  or  inflicted.  In  civil  cases,  this  jurisdiction  is  ordinarily 
subject  to  an  appeal  to  the  superior  tribunals  of  their  own  coun- 
try, and  in  criminal  cases,  the  prisoners  are  sometimes  sent  home 
for  trial  and  punishment,  especially  if  the  punishment  exceeds 
the  infliction  of  pecuniary  penalties.  This,  however,  depends 
upon  the  laws  of  their  own  country  regulating  such  proceedings. 

§  21.  Over  foreigners.  Usage  and  treaties  also  give  such  con- 
sular courts  civil  jurisdiction  of  a  certain  class  of  cases  arising 
between  their  own  countrymen  and  other  foreign  Christians. 
Thus,  an  Englishman  in  China  may  bring  suit  against  an  Amer- 
ican before  an  American  consular  court,  and  it  is  in  accordance 
with  the  principles  of  public  law  that  an  American  may  sue  an 
Englishman  in  an  English  court,  or  a  Frenchman  in  a  French 
court  established  there.  For  these  are  cases  of  voluntary  sub- 
mission on  the  part  of  the  American  to  such  foreign  jurisdiction. 

§  22.  Cannot  be  compulsory.  But  an  American  cannot  be 
sued  in  such  foreign  consular  courts  in  the  east,  although  he 
may,  if  in  the  territories  of  the  respective  countries.  Thus  an 
Englishman  may  sue  or  be  sued  by  an  American  in  the  United 


CH.  X.— CONSULS  AND  COMMERCIAL  AGENTS.        129 

States,  or  an  American  may  sue  or  be  sued  by  an  Englishman 
in  England. 

§  23.  Reason  of  the  difference.  This  difference  results  from 
the  fact  that  the  local  courts  of  each  government  in  China  or 
the  east,  are  ex-territorial  ones,  have  no  territorial  jurisdiction, 
but  only  a  jurisdiction  as  to  persons,  namely,  their  own  citizens 
or  subjects.  As  a  matter  of  comity  they  permit  foreigners  to 
avail  themselves  of  such  jurisdiction,  but  they  cannot  compel 
them  to  do  so.  Even  this  act  of  comity  is  not  a  perfect  obli- 
gation. 


CHAPTEE  XI. 

MUTUAL  DUTIES  OF  STATES. 

§  1.  Rights  and  correlative  duties.  Every  right  has  its  cor- 
relative duty.  As  the  international  rights  of  states  are  divided 
into  perfect  and  imper-fect  rights^  so  the  corresponding  inter- 
national obligations  may  be  also  divided  into  perfect  and  imper- 
fect duties.  It  will  be  remembered  that  any  right  of  a  sove- 
reign state  is  none  the  less  a  right  because  it  is  classed  as  imper- 
fect in  international  jurisprudence,  or  because  it  cannot  be 
absolutely  demanded  and  enforced  under  the  positive  law  of 
nations ;  so,  the  corresponding  obligation,  although  imperfect, 
is,  nevertheless,  a  duty  binding  upon  the  conscience  of  the 
nation  which  owes  it. 

§  2.  Classification  of  the  duties  of  states.  In  discussing  the 
mutual  duties  of  states,  we  will  consider :  First,  those  perfect 
duties  which  one  state  is  absolutely  bound  to  perform,  and 
which  others  have  a  perfect  right  to  demand,  such  as  the  obli- 
gations to  render  justice  to  others,  and  to  permit  to  them  the 
enjoyment  of  the  rights  of  independence,  of  equality,  of  pro- 
perty, of  legislation  and  jurisdiction,  of  legation  and  treaty, 
etc. ;  second,  those  imperfect  duties  which  are  recognized  by 
international  jurisprudence  as  binding  obligations,  but  which" 
those  to  whom  they  are  due  cannot  claim  and  enforce  as  abso- 
lute rights,  such  as  the  ordinary  duties  of  comity,  of  diplomatic 
and  commercial  intercourse,  etc. ;  and  third,  those  imperfect  duties 
which  rest  solely  upon  the  law  of  nature,  and  are  not  taken 
cognizance  of  by  the  positive  law  of  nations,  such  as  the  offices 
of  humanity,  of  friendships,  of  reciprocal  kindness,  etc. 

130 


CH.  XL— MUTUAL  DUTLES  OF  STATES.  131 

§  3.  Justice  a  perfect  obligation.  The  obligation  of  a  state  to 
render  justice  to  all  others  is  a  perfect  obligation,  of  strictly 
binding  force,  at  all  times  and  under  all  circumstances.  No 
state  can  relieve  itself  from  this  obligation,  under  any  pretext 
whatever.  It  is  an  obligation,  according  to  Vattel,  "more 
necessary  still  between  nations  than  between  individuals ;  be- 
cause injustice  has  more  terrible  consequences  in  the  quarrels  of 
these  powerful  bodies  politic,  and  it  is  more  difficult  to  obtain 
redress."  Moreover,  this  obligation  of  the  state  is  equally  bind- 
ing upon  all  its  rulers,  officers,  and  citizens, — in  fine,  upon  each 
and  every  individual  member  which  compose  the  state  or  body 
politic. 

§  4.  States  responsible  for  acts  of  their  mlers.  There  can  be 
no  doubt  that  every  state  is  responsible  for  the  acts  of  its  rulers, 
whether  they  belong  to  the  executive,  legislative,  or  judicial 
department  of  the  government,  so  far  as  the  acts  are  done  in 
their  official  capacity.  States  have  relations  with  each  other 
only  through  their  respective  governments,  and,  in  internationaF 
jurisprudence,  the  government  is  the  state,  no  matter  what  may 
be  its  form  or  duration,  whether  it  be  a  despotism,  or  a  pure 
republic ;  whether  it  be  a  mere  de  facto  government,  organized 
for  a  temporary  purpose,  or  one  deriving  its  authority  fi:om  long 
ages  of  legitimate  descent. 

§  5.  Acts  of  subordinate  officers.  The  question,  however, 
assumes  a  different  aspect  when  we  consider  the  acts  of  the 
subordinate  officers  of  a  state.  A  state  is  undoubtedly  responsi- 
ble for  oil  the  acts  of  its  ambassadors  and  other  public  ministers 
furnished  with  full  power^  and  also  of  all  its  diplomatic  agents, 
within  the  limits  of  their  presumed  powers  and  duties,  until  such 
acts  are  expressly  disclaimed  by  the  state  as  being  unauthorized. 
And  even  then  it  is  bound,  in  general,  to  repair  the  wrong  and 
to  punish  the  offender ;  for  a  mere  disclaimer  is  not  always  satis- 
factory to  the  party  aggrieved.  This  rule  is  particularly  applica- 
ble to  the  acts  of  its  military  and  naval  forces.  These  ai-e 
regarded  as  the  peculiar  guardians  of  the  honor  and  dignity  of 


132        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

the  state  as  represented  by  the  flag  under  which  they  serve ; 
moreover,  the  rigor  of  military  law  and  military  discipline 
would,  by  presumption,  give  to  the  act  of  a  military  officer  a 
much  higher  degree  of  authority  and  responsibility  than  the  act 
of  a  mere  civil  functionary.  The  former  are  under  the  imme- 
diate orders  and  direction  of  the  head  of  the  state,  while  the 
latter,  though  supposed  to  be  governed  by  the  laws  of  the  state, 
are  not  always  subject  to  the  immediate  direction  of  its  execu- 
tive government,  or  amenable  to  punishment.  The  act  of  a 
military  or  naval  officer,  in  his  official  capacity,  is,  therefore, 
prima  facie  the  act  of  his  government,  and  is  to  be  so  regarded 
till  disavowed  by  his  government. 

§  6.  Acts  of  private  citizens.  Yattel  says,  "  As  it  is  impos- 
sible for  the  best  regulated  state,  or  for  the  most  vigilant  and 
absolute  sovereign,  to  model,  at  his  pleasure,  all  the  actions  of 
his  subjects,  and  to  confine  them,  on  every  occasion,  to  the  most 
exact  obedience,  it  would  be  unjust  to  impute  to  the  nation,  or 
to  the  sovereign,  all  the  faults  of  the  citizens.  We  ought  not 
then  to  say,  in  general,  that  we  have  received  an  injury  from  a 
nation,  because  we  have  received  it  from  one  of  its  members.'^ 
The  act  of  the  individual  is  not  necessarily  and  of  consequence 
the  act  of  the  state,  nor  would  it  be  just,  in  all  cases,  to  hold  a 
state  responsible  for  the  act  of  each  individual  member  of  which 
it  is  composed.  The  responsibility  of  the  state  results  from  its 
neglect  or  inability  to  control  the  conduct  of  its  subjects,  or  its 
neglect  and  inability  to  punish  the  offenses  and  crimes  which 
they  commit. 

§  7.  K  such  acts  are  ratified  or  not  restrained.  But,  says  the 
same  author,  if  a  nation,  or  its  ruler,  approves  and  ratifies  the 
act  committed  by  a  citizen,  it  makes  that  act  its  own ;  the  offense 
must  then  be  attributed  to  the  nation  as  the  true  author  of  the 
injury,  of  which  the  citizen  is,  perhaps,  only  the  instrument. 
So,  also,  the  sovereign  who  refuses  to  cause  a  reparation  to  be 
made  of  the  damage  done  by  his  subject,  or  to  punish  the  guilty, 
or,  in  short,  to  deliver  him  up,  renders  himself,  in  some  mea- 


GIL  XL— MUTUAL  DUTLES  OF  STATES.  133 

sure,  an  accomplice  in  the  injury,  and  becomes  responsible  for  it. 
If  a  nation  should  refuse  or  fail  to  pass  the  laws  necessary  to 
restrain  its  citizens  from  aggressions  upon  other  states,  or  upon 
their  citizens,  or  if,  such  laws  being  enacted,  the  officers  of  the  state 
neglect  to  enforce  them,  and  such  aggressions  by  individuals  result 
therefrom,  the  state  is  unquestionably  responsible  for  the  injury. 

§  8.  Piracy  on  sea  and  land.  Piracy,  being  an  offense  against 
the  law  of  nations,  may  be  tried  and  punished  anywhere. 
"  Fillibuster  expeditions,^'  or  illegal  and  irresponsible  military 
expeditions  by  land,  are  equally  offenses  against  international 
law,  and  some  have  considered  them  equally  justiciable  at  inter- 
national law  anywhere.  But  be  that  as  it  may,  a  nation  which 
permits  and  encourages  its  citizens  to  engage  in  such  unlawful 
operations,  like  the  Usbecks  and  Algerines,  become  themselves 
responsible  for  these  acts,  and  are  liable  to  punishment. 

§  9.  Plea  of  emigration  and  expatriation.  The  plea  that  a 
state  is  exempt  in  such  cases  from  responsibility  because  such  pri- 
vate citizens  are  emigrants,  and  therefore  are  virtually  expatriated, 
is  not  admissible,  because  the  right  of  voluntary  expatriation 
exists  only  in  time  of  peace,  and  for  peaceful  and  lawful  pur- 
poses. Every  state  has  the  right,  and  therefore  it  is  its  duty,  to 
prevent  the  emigration  of  its  citizens  for  unlawful  and  criminal 
purposes  either  by  sea  or  land. 

§  10.  Duties  of  mutual  respect.  It  is  the  duty  of  every  state 
to  show  all  proper  respect  and  honor  to  other  sovereign  states, 
whether  the  dignity  of  such  states  be  represented  in  the  person 
of  their  sovereign,  their  flag,  their  ministers,  or  their  subordi- 
nate officers.  A  want  of  respect  to  a  subordinate  officer,  however, 
is  not,  by  any  means,  to  be  necessarily  construed  into  a  want 
of  respect  for  the  state  to  which  he  belongs,  for  such  officers 
do  not  necessarily,  nor  even  by  implication,  represent  the  dig- 
nity of  their  state  or  nation.  To  be  wanting  in  respect  to 
the  representatives  and  officers  of  other  states  is  a  mark  of  ill 
will,  and  such  conduct  is  equally  contrary  to  sound  policy,  and 
to  what  nations  owe  to  each  other. 

12 


134        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

§  11.  Failure  in  respect  not  always  an  insult.  But  to  fail  in 
matters  merely  ceremonial,  by  not  rendering  the  respect  and 
honor  which  usage  and  custom  have  established  as  properly  due 
to  others,  is  not  necessarily  an  insult  to  the  dignity  of  a  state  or 
of  its  sovereign.  "It  is  proper/^  says  Vattel,  "to  distinguish 
between  negligence,  or  the  omission  of  what  ought  to  be  done 
according  to  commonly  received  custom,  and  positive  acts  of 
disrespect  and  insult.  The  prince  may  complain  of  negligence, 
and,  if  it  is  not  repaired,  may  consider  it  as  a  mark  of  a  bad 
disposition ;  he  has  a  right  to  demand,  even  by  force  of  arms, 
the  reparation  of  an  insult." 

§  12.  Duty  of  trade  and  commerce.  The  right  of  one  state  to 
trade  with  another  is  an  imperfect  right,  which  the  other  state 
may  admit  or  not,  according  as  it  deems  such  trade  beneficial  or 
detrimental.  On  this  subject  it  must  judge  for  itself;  no  one 
can  pretend  to  decide  upon,  or  compel  the  performance  of  its 
duty.  The  correlative  rights  and  duties  of  trade  are,  like  those 
of  sending  and  receiving  diplomatic  legation,  at  most  imperfect 
obligations. 

§  13.  Case  of  China  and  Japan.  China  and  Japan  for  a  long 
time  declined  all  commercial  intercourse  with  other  nations,  and 
even  now  permit  only  a  very  restricted  trade,  in  particular  arti- 
cles, and  at  particular  places.  The  question  was  at  one  time 
discussed,  whether  these  people  could  not  be  compelled  to  open 
their  ports  to  foreigners,  and  engage  in  trade  and  general  inter- 
course with  the  rest  of  the  world.  But,  as  a  question  of  inter- 
national jurisprudence,  it  scarcely  merits  consideration.  No 
doubt  on  this  point  could  arise  in  the  mind  of  any  person  ex- 
cept those  who  contend  that  the  rules  of  international  law, 
adopted  by  Christian  nations,  are  wholly  inapplicable  to  the 
countries  of  Asia.  But  this  opinion,  although  at  one  time  sup- 
ported by  writers  of  unquestionable  ability,  is  now  almost  uni- 
versally rejected  by  publicists. 

§  14.  Mutual  duties  of  humanity.  Among  the  mutual  duties 
of  states,  arising  from  natural  law,  and  not  usually  taken  cog- 


CH.  XI.— MUTUAL  DUTIES  OF  STATES.  135 

nizance  of  by  the  positive  law  of  nations,  are  the  offices  of 
humanity,  such  as  relieving  the  distresses  and  wants  of  others, 
so  far  as  is  reconcilable  with  our  duty  toward  ourselves.  Thus, 
if  a  nation  is  suffering  under  a  famine,  all  others  having  a 
quantity  of  provisions,  are  bound  to  relieve  its  distress,  yet 
without  thereby  exposing  themselves  to  want.  "  But,"  continues 
Yattel,  "if  this  nation  is  able  to  pay  for  the  provisions  thus 
furnished,  it  is  entirely  lawful  to  sell  them  at  a  reasonable  rate ; 
for  what  it  can  procure  is  not  due  to  it,  and,  consequently,  there 
is  no  obligation  of  giving  for  nothing  such  things  as  it  is  able 
to  purchase.  Succor,  in  such  a  severe  extremity,  is  essentially 
agreeable  to  human  nature,  and  a  civil  nation  very  seldom  is 
seen  to  be  absolutely  wanting  in  such."  Contributions  of  pro- 
visions, by  the  people  of  the  United  States,  to  the  starving 
population  of  Ireland  and  Madeira,  are  examples  of  the  per- 
formance of  this  natural  duty.  The  same  remarks  apply  to 
eases  of  distress  resulting  from  floods,  fires,  earthquakes,  war, 
etc. 

§  15.  Sometimes  limited  by  the  duties  of  neutrality.  In  time 
of  war  the  duties  of  humanity  as  applied  to  states  are  some- 
times limited  by  the  duties  of  neutrality.  Thus,  a  neutral  state 
could  not  relieve  the  suffering  inhabitants  of  a  place  besieged 
or  blockaded,  or  of  a  section  of  country  devastated  by  an  in- 
vading or  operating  army.  There  can  be  no  doubt,  however, 
that  when  the  war  is  ended,  or  its  operations  are  removed  from 
the  particular  place  or  section  of  country,  foreign  nations  may 
extend  the  offices  of  humanity  to  relieve  the  distresses  of  a  suf- 
fering people.  Of  such  a  character  was  the  assistance  rendered 
by  the  people  of  the  United  States  to  the  suffering  inhabitants 
of  modern  Greece,  in  their  struggle  against  the  Turks. 

§  16.  Duty  of  friendship  and  comity.  Nothing  tends  more  to 
the  peace  of  the  world,  and  the  general  comity  and  intercourse 
of  nations,  than  mutual  friendship  and  kind  offices.  The  cul- 
tivation of  international  good-will  and  friendship  is,  therefore, 
one  of  the  first  and  highest  duties  imposed  upon  every  sovereign 


136        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

state.  Rulers,  however,  are  too  apt  to  neglect  this  duty,  and  to 
seek  to  exalt  their  own  patriotism  by  depreciating  other  coun- 
tries, and  inciting  in  their  own  people  feelings  of  unkindness 
and  hostility  to  their  neighbors.  Such  conduct  is  very  repre- 
hensible, and  its  results  are  generally  dangerous,  if  not  disas- 
trous. For  the  authorities  of  one  state  to  abuse  and  depreciate 
the  government  of  another,  is  a  sure  indication  of  weakness  and 
want  of  civilization  and  refinement.  National  irritability  is 
mentioned  by  Dymond  as  a  most  prominent  cause  of  war.  "  It 
is  assumed,'^  he  says,  "  not  indeed  upon  the  most  rational 
grounds,  that  the  best  way  of  supporting  the  dignity,  and 
maintaining  the  security  of  a  nation,  is,  when  occasions  of 
disagreement  arise,  to  assume  a  high  attitude  and  a  fearless 
tone.  We  keep  ourselves  in  a  state  of  irritability,  which  is  con- 
tinually alive  to  occasions  of  oifense,  and  he  that  is  prepared  to 
be  offended,  readily  finds  offenses.  *  *  *  So  well,  indeed, 
is  national  irritability  known  to  be  an  efficient  cause  of  war, 
that  they  who,  from  any  motive,  wish  to  promote  it,  endeavor 
to  rouse  the  temper  of  a  people  by  stimulating  their  passions, 
just  as  the  boys  in  our  streets  stimulate  two  dogs  to  fight. 
These  persons  talk  of  insults,  or  the  encroachments,  or  the  con- 
tempts of  the  destined  enemy,  with  every  artifice  of  aggravation ; 
they  tell  us  of  foreigners  who  want  to  trample  upon  our  rights, 
of  rivals  who  ridicule  our  power,  of  foes  who  will  crush,  and  of 
tyrants  who  will  enslave  us.  They  pursue  their  object,  cer- 
tainly, by  efficacious  means;  they  desire  war,  and,  therefore, 
irritate  our  passions ;  and  when  men  are  angry,  they  are  easily 
persuaded  to  fight." 


CHAPTER    XII. 

SETTLEMENT  OF  INTERNATIONAL  DISPUTES. 

§  1.  Duty  of  moderation  in  international  disputes.  The  pre- 
cepts of  morality,  as  well  as  the  principles  of  public  law,  by 
which  human  society  is  governed,  render  it  obligatory  upon  a 
state,  before  resorting  to  arms,  to  try  every  pacific  mode  of 
settling  its  disputes  with  others,  whether  such  disputes  arise 
from  rights  denied,  or  injuries  received.  This  moderation  is 
the  more  necessary,  as  it  not  unfrequently  happens  that  what  is 
at  first  looked  upon  as  an  injury  or  an  insult,  is  found,  upon  a 
more  deliberate  examination,  to  be  a  mistake  rather  than  an  act 
of  malice,  or  one  designed  to  give  offense.  Moreover,  the  injury 
may  result  from  the  acts  of  inferior  persons,  which  may  not 
receive  the  approbation  of  their  own  government.  A  little 
moderation  and  delay,  in  such  cases,  may  bring  to  the  offended 
party  a  just  satisfaction;  whereas,  rash  and  precipitate  measures 
often  lead  to  the  shedding  of  much  innocent  blood. 

§  2.  Modes  of  settlement.  The  different  modes  of  terminat- 
ing disputes  between  independent  states,  short  of  actual  war, 
are  divided  into  two  classes :  firet  amicable,  or  measures  taken 
vid  amicabili  ;  and  second,  forcible,  or  measures  taken  md  facta. 
The  amicable  modes  or  measures  have  been  variously  divided 
by  publicists;  the  division  most  generally  adopted  is,  into 
accommodation,  compromise,  mediation,  arbitration,  and  con- 
ference. The  forcible  modes  or  measures  are  commonly  known 
as  retortion,  retaliation,  reprisal,  seizure,  and  embargo. 

§  3.  Amicable  accommodation.  Amicable  accommodation  is 
where  each  party  candidly  examines  the  subject  of  dispute,  with 

12*  S  137 


188        JNTEIINATIONAL    LAW  AND  LAWS  OF   WAR. 

a  sincere  desire  to  preserve  peace,  by  doing  full  justice  to  the 
other.  In  such  cases,  all  doubtful  points  of  etiquette  will  be 
yielded,  and  all  uncertain  and  imaginary  rights  will  be  voluntarily 
renounced,  in  order  to  effect  an  amicable  adjustment  of  differences. 
If  no  compromise  of  the  right  in  dispute  can  be  effected,  the 
question  will  be  avoided  by  the  substitution  of  some  other  ar- 
rangement which  may  be  mutually  satisfactory. 

§  4.  Compromise.  Compromise  is  where  the  two  parties,  with- 
out attempting  to  decide  upon  the  justice  of  their  conflicting 
pretensions,  agree  to  recede  on  both  sides,  and  either  to  divide 
the  thing  in  dispute,  or  to  indemnify  the  claimant  who  surren- 
ders his  share  to  the  other.  As  examples  of  compromise,  we 
may  refer  to  the  negotiations  terminating  in  the  treaty  of  1842, 
by  which  the  Maine  boundary  question  was  satisfactorily  ad- 
justed, and  to  the  negotiations  terminating  in  the  treaty  of 
1846,  by  which  the  Oregon  difficulty  was  formally  disposed 
of. 

§  5.  Mediation.  Mediation  is  where  a  common  friend  inter- 
poses his  good  offices  to  bring  the  contending  parties  to  a  mutual 
understanding.  As  this  friend  acts  the  part  of  a  conciliator, 
rather  than  a  judge,  he  may,  while  favoring  the  well-founded 
claims  of  one  party,  seek  to  induce  him  to  relax  something  of  his 
pretensions,  if  necessary,  in  order  to  secure  peace.  The  mediator 
is  essentially  different  from  the  arbitrator,  although  he  fre- 
quently assumes  the  latter  office  also ;  he  does  not  decide  upon 
any  of  the  matters  in  dispute,  but  merely  seeks  to  reconcile  con- 
flicting opinions,  and  to  moderate  adverse  pretensions. 

§  6.  Arbitration.  Arbitration  is  Avhere  the  decision  of  a  dis- 
pute is  left  to  arbitrators  chosen  by  common  agreement.  If  the 
contending  parties  have  agreed  to  abide  by  the  decision  of  these 
referees,  they  are  bound  to  do  so,  except  in  cases  where  the  award 
is  obtained  by  collusion,  or  is  not  confined  within  the  limits  of 
the  submission.  It  is  usual  to  specify  in  agreements  to  arbitrate, 
the  exact  questions  which  are  to  be  decided  by  the  arbitrators, 
and  if  thev  exceed  these  precise  bounds,  and  pretend  to  decide 


OH.  XIL— INTERNATIONAL  DISPUTES.  139 

upon  other  points  than  those  submitted  to  them,  their  decision 
is  in  no  respects  binding. 

§  7.  Rejection  of  offers  to  arbitrate.  Offers  to  arbitrate  are 
not  always  accepted,  nor  is  the  state  declining  the  proposal 
bound  to  give  any  reasons  in  justification  for  rejecting  the  pro- 
posal of  the  other  disputant,  or  the  proffer  of  a  third  power  to 
act  as  arbitrator.  "  It  cannot,"  says  Phillimore,  "  be  laid  do^vn 
as  a  general  and  unqualified  proposition,  that  it  is  the  duty  of 
states  to  adopt  this  mode  of  trial.  There  may,  under  the  cir- 
cumstances, be  no  third  state  willing,  or  qualified  in  all  respects, 
for  so  arduous  and  invidious  a  task.  Moreover,  a  state  may  feel 
that  the  contested  right  is  one  of  vital  importance,  and  one 
which  she  is  not  justified  in  submitting  to  the  decision  of  any 
arbiter  or  arbiters." 

§  8.  Conferences  and  congresses.  Conferences  and  international 
congresses  have  frequently  been  resorted  to,  where  differences 
exist  between  several  states,  and  they  are  willing  to  discuss  them 
in  a  spirit  of  conciliation,  in  order  to  bring  them  to  an  amicable 
settlement.  They  are  also  often  resorted  to  after  the  termination 
of  a  general  war,  for  the  purpose  of  discussing  and  settling 
questions  growing  out  of  the  operations  of  the  war,  and  not  in- 
cluded in  the  stipulations  of  the  treaty  of  peace.  Other  states 
than  those  who  are  parties  to  the  dispute,  being  interested  in  the 
determination  of  the  questions  submitted,  or  at  least  in  the  pre- 
servation of  peace,  are  most  usually  invited  to  take  part  in  these 
conferences. 

§  9.  Retortion.  Retortion,  called  by  some  amicable  retalia- 
tion, and  retoiiion  de  droit,  is  where  one  nation  applies,  in  its 
transactions  with  the  other,  the  same  rule  of  conduct  by  which 
that  other  is  governed  under  similar  circumstances.  Thus,  if 
one  state  should  make  aggressive  laws  respecting  the  property, 
or  trade,  or  personal  rights  of  the  citizens  of  another  state,  the 
latter  may  retort,  by  enacting  similar  laws  against  the,  citizens 
of  the  former.     This  kind  of  retaliation  usually  follows  the 


140        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

breach  of  what  are  called  imperfect  obligations,  and  which  do 
not  justify  a  resort  to  forcible  measures. 

§  10.  Retaliation.  Retaliation,  or,  as  it  is  sometimes  called, 
vindictive  retaliation,  or  retorsio  factij  is  where  one  state  seeks 
to  make  another,  or  its  citizens,  suffer  the  same  amount  of  evil 
which  the  latter  has  inflicted  upon  the  former.  Retaliation 
should  be  limited  to  such  punishments  as  may  be  requisite  for 
our  own  safety  and  the  good  of  society ;  beyond  this  it  cannot 
be  justified. 

§  11.  Reprisals.  Reprisals  are  resorted  to  for  the  redress  of 
injuries  inflicted  upon  the  state,  in  its  collective  capacity,  or 
upon  the  rights  of  individuals  to  whom  it  owes  protection  in 
return  for  their  allegiance.  They  consist  in  the  forcible  taking 
of  things  belonging  to  the  offending  state,  or  of  its  subjects,  and 
holding  them  until  a  satisfactory  reparation  is  made  for  the  al- 
leged injury.  If  the  dispute  is  afterward  arranged,  the  things 
thus  taken  by  way  of  reprisal  are  restored,  or,  if  confiscated  and 
sold,  are  paid  for  with  interest  and  damages ;  but  if  war  should 
result,  they  are  condemned  and  disposed  of  in  the  same  manner 
as  other  captured  property,  taken  as  prize  of  war.  As  reprisals 
bring  us  to  the  awful  confines  of  actual  war,  it  is  proper  to  in- 
quire what  kind  of  injuries,  inflicted  upon  the  state  collectively, 
or  upon  its  individual  members,  justify  a  resort  to  so  dangerous 
a  measure  of  redress.  It  is  only  in  cases  where  justice  has  been 
plainly  denied,  or  most  unreasonably  delayed,  that  a  sovereign 
state  can  be  justified  in  authorizing  reprisals  upon  the  property 
of  another  nation. 

§  12.  General  and  special  reprisals.  Reprisals  may  be  either 
general  or  special.  They  are  general  where  one  state  aAvards  to 
its  subjects  a  general  permission  to  seize  the  goods  or  persons 
of  the  offending  nation  upon  the  high  seas,  or  wherever  found 
without  the  jurisdiction  of  another  state.  They  are  special 
where  such  permission  is  limited  to  particular  persons  or  things, 
or  in  time  and  place. 

§  13.  Positive  and  negative  reprisals.     Another  division  of  re- 


en.  XIL— INTERNATIONAL   DISPUTES.  141 

prisals,  made  by  writers  on  public  law,  is,  into  'positive  and  negor- 
live,  or,  as  termed  by  some  writers,  active  and  passive.  Repris- 
als are  negative  when  a  state  refuses  to  fulfill  a  perfect  obligation 
which  it  has  contracted,  or  to  permit  another  nation  to  enjoy  a 
right  which  it  claims ;  they  are  positive  when  they  consist  in 
seizing  the  persons  and  effects  belonging  to  the  other  nation,  in 
order  to  obtain  satisfaction.  The  same  rule  applies  to  both  of 
these  classes,  that  is,  neither  should  be  resorted  to  except  where 
the  cause  is  manifestly  just,  and  after  all  milder  means  have 
proved  ineffectual.  Negative  reprisals,  however,  are,  in  general, 
less  likely  to  produce  an  immediate  rupture  than  those  of  a  posi- 
tive character.  Nations  are  more  ready  to  repel  force  than  to 
employ  it. 

§  14.  Seizure.  Seizure  is  a  general  term  applicable  to  the 
forcible  taking  of  the  persons  or  property  of  others,  and  is  ap- 
plied alike  to  reprisals  and  belligerent  captures  made  in  war. 
But,  in  its  more  restricted  sense,  as  applied  to  measures  taken 
vid  facta,  or  forcible  means  of  settling  international  disputes, 
the  term  is  limited  to  taking  forcible  possession  of  the  thing  in 
dispute,  or  of  the  persons  by  whom  the  offense  is  committed. 
The  seizure  of  the  thing  in  controversy  is  generally  regarded  as 
the  preliminary  step  toward  the  commencement  of  a  war.  It 
is,  nevertheless,  neither  an  actual  nor  a  formal  declaration  of 
hostilities,  and  there  is,  therefore,  still  a  possibility  of  a  settle- 
ment of  the  dispute,  before  entering  into  a  state  of  solemn  and 
public  war. 

§  15.  Right  to  be  first  proved.  But  before  taking  such  forci- 
ble possession,  it  is  necessary  for  us  to  prove  clearly  our  right  to 
the  thing  in  dispute,  and  also  that  we  have  already  tried  the 
milder  modes  of  adjustment,  for  other  people  are  not  obliged  to 
respect  that  title  any  further  than  we  show  its  validity,  nor  will 
they  justify  us  in  resorting  to  a  measure  of  so  much  rigor,  and 
one,  too,  so  likely  to  produce  the  most  serious  consequences  to 
society,  until  we  justify  our  conduct  on  the  ground  of  its  abso- 
lute necessity.     The  possessor  may,  therefore,  remain  in  the  pas- 


142        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

session  till  proof  is  adduced  to  convince  him  that  his  possession 
is  unjust. 

§  16.  Reprisals  upon  persons.  It  is  a  well  settled  principle  of 
international  law,  that  reprisals,  strictly  speaking,  aifect  the 
persons  as  well  as  the  property  of  the  subjects  of  the  government 
against  which  they  are  granted ;  but,  in  modern  times,  they 
have  been  chiefly  confined  to  goods.  In  executing  the  right  of 
reprisal  upon  vessels,  the  persons  of  the  commanders  and  crews 
are  necessarily  affected,  although  it  is  usual  to  release  them 
immediately  on  bringing  into  port  the  vessel  taken  by  way  of 
reprisal.  Nevertheless,  the  right  of  reprisal,  extends  also  to  all 
persons  of  the  offending  nation. 

§  17.  la  the  punishment  of  individual  offenders.  Eeprisals  in 
the  case  of  individual  offenders  is  sometimes  extended  to  their 
seizure  for  punishment,  in  the  territory  of  the  offended  party, 
upon  the  high  seas,  and  even  within  the  territory  of  his  own 
state.  As  already  stated,  the  latter  act  is  a  violation  of  territo- 
rial rights,  and,  if  done  with  an  armed  force,  is  an  act  of  hos- 
tility, but  not  necessarily  of  war. 

§  18.  Where  his  government  assumes  his  act.  It  is  generally 
held  that  wliere  the  government  assumes  the  act  of  the  indi- 
vidual, the  latter  cannot  be  individually  punished,  unless  the 
act  was  one  which  his  government  had  no  power  to  order  in  the 
exercise  of  its  pacific  or  belligerent  rights. 

§  19.  Case  of  McLeod.  Alexander  McLeod  in  1841  crossed 
the  Canadian  line  into  our  territory,  burned  the  steamer  "  Caro- 
line,''  and  it  was  said,  killed  one  Amos  Durfee.  The  British 
government  assumed  the  responsibility  of  these  acts  as  done  by 
its  authority.  Nevertheless,  the  Supreme  Court  of  the  State  of 
New  York  claimed  the  right  to  try  and  punish  McLeod  indi- 
vidually. The  federal  authorities  of  the  United  States  took  the 
ground  that,  after  the  avowal  of  his  government,  he  could  not  be 
made  liable. 

§  20.  Embargoes.  An  embargo  is  a  species  of  reprisal  upon 
the  property  of  the  offending  nation,  found  within  the  territory 


CH,  XIL— INTERNATIONAL  DISPUTES.  143 

of  the  injured  state,  by  prohibiting  the  departure  of  vessels,  or 
the  removal  of  goods.  An  embargo  may,  or  may  not  be,  fol- 
lowed by  the  sequestration  of  the  goods  and  property  detained. 
If  war  follows,  it  is  said  to  have  a  retroactive  effect,  and  the 
detained  goods  are  considered  as  the  property  of  enemies  taken 
in  war.  But  if  the  difficulty  which  led  to  the  embargo  is  amicably 
arranged,  they  are  released  upon  the  terms  which  the  parties 
may  stipulate  in  such  arrangement.  In  maritime  embargoes, 
persons  as  well  as  goods  are  usually  seized  and  retained,  to  be 
subsequently  released,  or  treated  as  prisoners  of  war,  according 
as  the  embargo  results  in  peace  or  solemn  war.  An  embargo  is 
more  usually  resorted  to  in  contemplation  of  hostilities,  than  as 
a  mode  of  settling  disputes  between  states.  It  is,  therefore, 
classed  by  Phil  li more  as  a  measure  of  redress,  "  midway  between 
reprisals  and  war." 

§  21.  Where  reprisals,  etc.,  are  followed  by  war.  The  resort  to 
reprisals,  seizures,  or  embargoes,  or  forcible  means  of  redresss 
between  nations,  may  assume  the  character  of  war,  in  case  they 
fail  to  produce  the  satisfaction  demanded  of  the  offending  state. 
Such  acts,  as  already  remarked,  not  being  positive  acts  of  war, 
the  effects  seized  are  not  usually  condemned  till  the  question  of 
peace  or  war  is  finally  decided.  If  peace  should  be  continued, 
they  are  restored,  but  if  war  follows,  they  are  confiscated. 

§  22.  Who  grants  reprisals,  etc.  The  right  of  granting 
reprisals,  or  of  authorizing  seizures  and  embargoes,  is  vested  in 
the  sovereign,  or  supreme  power  of  the  state.  It  being  little 
short  of  the  right  to  carry  on  war,  it  is  usually  conferred  only 
by  the  war-making  power  of  the  state.  This,  however,  is  regu- 
lated by  municipal  law. 

§  23.  Not  in  favor  of  foreigners.  A  state  may  authorize 
seizures  and  reprisals  in  favor  of  its  own  citizens,  and  for  the 
redress  of  its  own  grievances,  but  not  in  favor  of  foreigners, 
or  in  an  affair  in  which  the  nation  has  no  concern. 

§  24.  May  in  favor  of  domiciled  aliens.  Valin  is  of  opinion  that 
the  exception  of  foreigners  does  not  apply  to  aliens  domiciled 


144        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

in  the  country,  {regnicola,)  the  state  being  bound  to  protect 
them,  and  to  consider  an  injury  done  to  them  as  an  aiFront  to  its 
own  sovereignty.  Letters  of  reprisal  may,  therefore,  issue  not 
only  to  a  subject,  by  birth  or  naturalization,  but  also  to  a 
foreigner  domiciled  in  the  country.  This  might  be  inferred 
from  the  rule  of  international  law,  which  subjects  the  property 
of  domiciled  aliens  to  all  the  contingencies  of  the  war,  they 
being  considered,  in  law,  as  the  subjects  of  the  state  in  which 
they  are  domiciled.  Being  themselves  liable  to  reprisals  against 
the  country  of  their  domicil,  it  would  seem  just  that  they  be 
allowed  to  participate  in  their  benefits. 


CHAPTER  XIII. 

JUST  CAUSES  OF  WAR. 

§  1.  Wars  without  just  cause.  "Whoever,"  says  Vattel, 
"entertains  a  true  idea  of  war, — whoever  considers  its  terrible 
effects,  its  destructive  and  unhappy  consequences,  will  readily 
agree  that  it  should  never  be  undertaken  without  the  most  co- 
gent reasons.  Humanity  revolts  against  a  sovereign  who,  with- 
out necessity,  or  without  very  powerful  reasons,  lavishes  the 
blood  of  his  most  faithful  subjects,  and  exposes  his  people  to 
the  calamities  of  war,  when  he  has  it  in  his  power  to  maintain 
them  in  the  enjoyment  of  an  honorable  and  salutary  peace." 

§  2.  Reasons  and  motives  of  war.  The  reasons  which  deter- 
mine a  nation  to  undertake  a  war,  are  divided,  by  publicists, 
into  two  distinct  classes :  those  which  relate  to  the  right  to  make 
the  war,  and  those  which  relate  to  the  expediency  or  propriety 
of  doing  so.  The  former  are  called  the  causes  of  war,  and  the 
latter  the  motives  ;  these  causes  may  he  justifiable  or  unjustifixible, 
and  the  motives  may  be  commendable  or  vicious.  The  distinc- 
tion has  not  always  been  observed  by  publicists  and  historians, 
and  we  not  unfrequently  find  reasons  alleged  as  causes  of  a  war 
which  were  only  motives  or  mere  pretexts  for  undertaking  it. 

§  3.  Justifiable  causes.  The  justifiable  causes  of  a  war  are 
injuries  received  or  threatened.  There  must  be  a  strong  proba- 
bility that  the  threat  may  be  attempted  to  be  carried  into  execu- 
tion, as  mere  empty  words  will  seldom  justify  us  in  declaring 
war.  It  is  not  necessary  that  the  injury  should  be  material  or 
physical,  as  a  national  insult  is  often  as  injurious  as  the  robbery 
of  a  province.     The  justifiable  objects  of  a  war  may,  therefore, 

13  T  146 


146        INTERNATIONAL    LAW  AND  LAWS  OF   WAR. 

be  divided  into  three  classes  or  sub-divisions:  1st,  To  secure 
what  belongs  or  is  due  to  us ;  2d,  To  provide  for  our  future 
safety  by  obtaining  reparation  for  injuries  done  to  us;  and  3d, 
To  protect  ourselves  and  property  from  a  threatened  injury.  We 
will  consider  each  of  these  classes  separately. 

§  4.  Wars  to  secure  what  belongs  to  us.  Firstj  of  wars  un- 
dertaken to  secure  what  belongs  or  is  due  to  us.  We  have 
shown,  in  the  preceding  chapter,  that  the  party  in  possession  has 
a  right  to  retain  his  possession  till  the  other  claimant  shows  a 
clear  and  valid  title  to  the  thing  in  dispute ;  and  if,  before  prov- 
ing such  title,  he  should  attempt  to  oust  the  actual  possessor  by 
force,  the  latter  may  employ  force  to  resist  the  attack.  So,  if 
the  latter  be  removed  from  his  possession  by  fraud  or  surprise, 
or  violence,  he  may  employ  force  to  recover  it ;  but  if  the 
former  shows  a  clear  and  valid  title  to  the  thing  in  dispute,  and 
has  first  resorted  to  the  amicable  modes  of  settling  the  question 
upon  an  equitable  footing,  and  has  been  refused  all  reasonable 
modes  of  adjustment,  he  may  be  justifiable  in  resorting  to  force 
for  the  recovery  of  what  really  and  truly  belongs  to  him,  and  is 
unjustly  withheld  by  his  opponent. 

§  5.  To  punish  an  aggression.  Second,  of  wars  undertaken  to 
provide  for  our  future  safety,  by  obtaining  a  reparation  of  in- 
juries done  to  us.  We  have  stated,  in  a  former  chapter,  that  a 
sovereign  state  is  not  liable  to  punishment  in  the  strict  technical 
sense  of  that  term;  but,  that  where  one  state  is  injured  or  in- 
sulted by  another,  the  former  may  require  not  only  indemnity 
for  the  past,  but  security  for  the  future,  by  making  war  upon 
the  aggressor.  This  is  regarded,  in  ordinary  language,  as  a 
punishment  for  the  offenses  committed,  and  is  intended  to  pre- 
vent their  recurrence.  But,  in  public  law,  it  is  considered  in 
the  light  of  a  reparation  of  injuries  received,  and  as  an  act  of 
self-defense  in  providing  for  future  security.  A  war,  under- 
taken for  such  a  cause,  must  be  limited  to  the  object  in  view  j 
beyond  this,  it  is  unjustifiable. 

§  6.  To  protect  us  from  threatened  danger.     2'hirdy  of  wars 


Cff.  XIIL—JUST  CAUSES  OF  WAR.  147 

undertaken  to  protect  ourselves  and  property  from  a  threatened 
injury.  Self-defense  is  not  limited  to  the  repelling  of  unjust 
violence ;  if  it  be  seriously  threatened,  we  may  resort  to  such 
forcible  measures  as  may  be  necessary  to  prevent  its  occurrence. 
It  is  not  required  of  a  state  that  it  wait  till  an  injury  is  actually 
received,  and  then  make  war  to  obtain  reparation ;  it  is  its  duty 
to  provide  against  the  threatened  danger,  by  making  war,  if 
need  be,  upon  the  threatening  party,  in  order  to  deprive  him  of 
the  means  of  inflicting  the  injury. 

§  7.  Against  the  a^randlzement  of  a  neighbor.  The  aggran- 
dizement of  a  state  so  as  to  give  it  a  predominating  power  over 
its  neighbor,  is  not  in  itself  a  just  cause  of  war.  There  must 
be  not  only  a  capacity,  but  an  actual  intention  to  injure  us,  and 
that  intention  must  be  made  clearly  and  unmistakably  manifest, 
before  we  are  justified  in  resorting  to  war  to  diminish  its  power 
or  oppose  its  increase. 

§  8.  The  motives  of  a  war.  As  has  already  been  remarked,  it 
is  not  sufficient,  in  the  forum  of  conscience,  that  we  have  just 
grounds  for  war,  or  that  its  objects  are  justifiable ;  we  must,  also, 
have  good  and  proper  motives  for  undertaking  it.  Thus,  we 
may  have  received  injuries,  and  suffered  aggressions  from 
another  nation,  which  would,  in  themselves,  have  constituted 
good  and  sufficient  reasons  for  declaring  war  against  it,  but, 
through  fear  or  policy,  we  have  not  done  so.  In  the  meantime, 
the  state  from  which  we  received  the  injury  may  have  been  so 
humbled  or  reduced  as  to  be  utterly  unable,  either  to  repeat  the 
aggression,  or  to  recompense  us  for  the  harm  it  formerly  did  us. 
What  motive  have  we  now  for  declaring  war  against  that  state  ? 
Solely  that  of  revenge,  which  can  be  considered  neither  good  nor 
proper.  The  motives  of  a  war  are  divided,  as  already  stated, 
into  two  classes  :  1st,  Commendable,  and  2d,  Vicious. 

§  9.  Commendable  motives.  Commendable  motives  are  derived 
from  the  good  of  the  state  and  the  protection  of  the  people. 
If  the  motive  for  the  war  is  to  prevent  an  injury,  or  to  repair 
one  by  obtaining  a  just  satisfaction,  or  to  provide  for  our  futui'e 


148        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

safety  by  obtaining  a  reparation  for  an  injury  done,  or  to  recover 
a  right  of  which  we  have  been  unjustly  deprived,  it  is  both 
proper  and  commendable. 

§  10.  Vicious  motives.  Vicious  motives  are  not  derived  from 
the  good  of  the  state  or  the  protection  of  its  citizens,  but  from 
the  suggestions  of  evil  passions.  Such  are  the  motives  which 
spring  from  unbridled  and  wicked  ambition, — the  arrogant  de- 
sire for  command,  the  ostentation  of  power,  the  thirst  for  riches, 
the  avidity  of  conquest, — from  jealousy,  hatred  and  revenge. 

§  11.  Pretexts.  Pretexts  are  the  reasons  which  are  alleged  in 
justification  of  a  war,  when  the  real  motives  are  different. 
Thus,  the  true  cause  of  the  war  which  Greece  undertook  against 
the  Persians,  was  the  experience  she  had  had  of  their  weakness, 
while  the  pretext,  alleged  by  Philip,  and  by  Alexander  after 
him,  was  the  desire  of  avenging  the  injuries  which  the  Greeks 
had  so  often  suffered,  and  of  providing  for  their  future  safety. 
"  Pretexts,"  says  Vattel,  "  are  at  least  an  homage  which  unjust 
men  pay  to  justice.  He  who  screens  himself  with  them,  shows 
that  he  still  retains  some  sense  of  shame.  He  does  not  openly 
trample  on  what  is  most  sacred  in  human  society ;  he  tacitly 
acknowledges  that  a  flagrant  injustice  merits  the  indignation  of 
all  mankind." 

§  12.  Early  Christians  opposed  to  all  wars.  While  ethical 
writers  of  all  ages  have  denounced  unjust  wars  as  the  greatest 
of  crimes,  some  of  the  early  fathers  of  the  church  went  so  far 
as  to  adopt  the  principle,  that  war,  in  any  case,  and  under  any 
circumstances,  is  unjustifiable,  because  contrary  to  the  revealed 
will  of  God,  and  that  all  Christians  were  forbidden  to  bear 
arms.  The  consequence  was  that  the  Roman  soldiers,  who  be- 
came converts  to  Christianity,  deserted  their  flags  in  crowds,  and 
some  suffered  martyrdom  rather  than  continue  in  the  military 
service.  This  extreme  doctrine  afforded  the  opponents  of  Chris- 
tianity good  ground  for  saying  that  it  was  destructive  of  civil 
government,  and  that  a  state  composed  of  true  Christians  could 
not  subsist.     Moreover,  it  became  evident,  that  if  Christians 


CH.  XITL—JUST  CAUSES  OF   WAR,  149 

were  not  permitted  to  use  arms  in  self-defense,  they  must  all 
perish  by  the  incursions  and  invasion  of  the  barbarians.  The 
question  was  referred  to  Saint  Augustin,  the  most  learned  father 
in  the  East.  On  his  opinion,  the  councils  pronounced  excom- 
munication against  those  soldiers  who  deserted,  even  in  time  of 
peace. 

§  13.  Modern  writers.  Notwithstanding  the  reasoning  and 
opinion  of  St.  Augustin  and  other  early  authorities  of  the  church 
tliat  Christians  may  with  propriety  engage  in  just  wars ;  some 
modern  authors  have  strenuously  advocated  the  doctrine,  that 
"  all  wars  are  contrary  to  the  revealed  will  of  God,''  and,  there- 
fore, unjustifiable  even  in  self-defense. 

§  14.  Dymond  and  Wayland.  The  most  able  and  moderate 
works  in  which  this  doctrine  is  attempted  to  be  sustained  are 
Dymond's  Essays  on  Morality,  and  Wayland's  Elements  of 
Moral  Philosophy.  However  plausible  their  arguments  may 
appear  at  first  sight,  they  need  only  to  be  examined  to  convince 
us  of  their  weakness,  if  not  absurdity.  Wars,  with  all  their 
attending  evils,  are  frequently  in  the  hands  of  Providence,  the 
means  of  disseminating  and  establishing  civilization.  Without 
them  bad  men  might  again  reduce  us  to  a  state  of  slavery  and 
barbarism.  The  Peace  or  Non-Besistance  Doctrine  was  quite 
prevalent  in  many  parts  of  the  United  States,  prior  to  the  re- 
bellion of  the  Southern  states,  but  many  of  its  advocates  became 
strong  supporters  of  the  war  for  the  preservation  of  the  union. 
13  « 


CHAPTER    XIV. 

DIFFERENT  KINDS  OF  WARS. 

§  1.  Definition  of  war.  War  has  been  defined,  "A  contest 
between  states,  or  parts  of  states,  carried  on  by  force/'  This 
definition  is  by  some  considered  defective,  and  as  excluding  that 
class  of  civil  wars  which  are  sometimes  carried  on  between  fam- 
ilies and  factions  which  do  not  constitute  either  states  or  organ- 
ized parts  of  states;  like  the  wars  of  the  Guelphs  and  Ghibel- 
lines  in  Italy,  the  guerrilla  wars  in  Spain,  and  the  wars  of  factions 
in  Mexico  and  South  America.  But  a  close  examination  into 
the  origin  and  nature  of  these  wars  will  show  that  they  are,  in 
most  cases,  waged  by  organized  parts  of  a  state,  and  have  refer- 
ence to  some  principle  of  internal  organization  or  party  su- 
premacy. 

§  2.  Divisions  by  military  writers.  Wars  have  been  divided 
into  different  classes,  according  to  the  views  and  professions  of 
those  who  discuss  them.  Military  writers,  generally,  consider 
them  in  relation  to  the  military  operations  which  are  carried  on, 
and,  therefore,  divide  them  into  offensive  and  defensive  wars. 
But  these  terms  are  here  used  in  a  very  different  sense  from  that 
in  which  they  are  usually  employed  by  political  and  ethical 
writers ;  for  a  war  may  be  essentially  defensive  in  its  political 
and  moral  character,  even  where  we  begin  it,  if  intended  to  pre- 
vent an  attack  or  invasion,  which  is  under  preparation. 

§  3.  By  historians.  Historians  and  publicists  have  generally 
divided  wars  according  to  their  origin,  objects,  and  effects,  hav- 
ing reference,  also,  to  the  character  of  the  parties  which  engage 
in  them.     Tlius,  historians  have  classified  these  contests,  as  wars 

150 


CH.  XIV.— DIFFERENT  KINDS  OF   WAR.  151 

of  intervention,  wars  of  insurrection  or  of  revolution,  wars  of  in- 
dependence, wars  of  conquest,  wars  of  opinion,  religious  wars, 
national  wars,  and  civil  wars.  They  have  also  classified  them 
according  to  the  general  theater  of  military  operations,  as  land 
wars,  and  maritime  wars;  or,  as  Asiatic,  African,  European, 
and  American  wars.  Again,  they  are  sometimes  divided,  with 
respect  to  periods  of  time  or  of  history,  as  ancient  and  modern 
wars,  or  wars  of  antiquity,  of  classic  history,  of  the  middle 
ages,  and  of  recent  times. 

§  4.  By  publicists.  Publicists,  on  the  other  hand,  have  di- 
vided and  classified  these  contests  with  reference  to  the  affairs 
of  state,  the  legal  status  of  the  parties  engaged  in  them,  and  the 
international  rights  and  obligations  which  result  from  them. 
Thus,  text-writers  usually  classify  them  as  public  or  solemn  wars, 
perfect  ways,  and  imperfect  wars,  mixed  wars,  the  non-solemn  hind 
of  wars,  and  acts  of  hostility  not  followed  by  actual  war,  but 
governed  by  the  laws  of  war.  Such  classification  is  of  little 
importance,  except  so  far  as  it  may  be  necessary  to  distinguish 
between  the  rules  applicable  to  particular  cases. 

§  5.  Wars  of  insurrection  and  rebellion.  An  insurrection  is 
the  rising  of  a  portion  of  the  people  against  their  government, 
or  against  its  officers,  or  against  the  execution  of  its  laws.  The 
term  rebellion  is  applied  to  an  insurrection  of  large  extent  or 
long  duration,  and  is  usually  a  war  between  the  legitimate  gov- 
ernment of  a  state,  and  portions  or  parts  of  the  same,  who  seek 
to  overthrow  the  government,  or  to  dissolve  their  allegiance  to 
it,  and  to  set  up  one  of  their  own.  The  war  of  the  "Great 
Kebellion"  in  England,  and  of  the  rebellion  of  the  Southern 
states  of  the  United  States,  may  be  referred  to  as  examples  un- 
der this  head. 

§  6.  Wars  of  revolution.  Wars  of  irisurrection,  and  of  revo- 
lution, are  generally  those  undertaken  to  gain,  or  to  regain  the 
liberty  or  independence  of  the  party  or  state  which  undertakes 
them;  as  was  the  case  with  the  Americans  in  1776,  against 
England ;  of  the  Mexicans,  and  South  American  states,  against 


152        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

Spain ;  of  the  Greeks,  in  1821 ;  and  of  the  Hungarians  in  1848, 
and  the  Italians  in  1860.  A  war  of  revolution  is  generally 
undertaken  for  the  dismemberment  of  a  state,  by  the  separation 
of  one  of  its  parts,  or  for  the  overthrow  and  radical  change  of 
the  government;  while  an  insurrectionary  war  is  sometimes 
waged  for  a  very  different  purpose. 

§  7.  Wars  of  independence.  Wars  of  independence  are  those 
waged  by  a  state  against  foreign  dictation  and  control ;  such  as 
the  wars  of  Poland  against  Russia,  of  the  Netherlands  against 
Spain,  of  France  against  the  several  coalitions  of  the  allied 
powers,  of  the  Spanish  Peninsula  against  France,  of  India 
against  England,  of  Hungary  against  Austria,  and  of  Turkey 
against  Russia.  The  war  of  1812,  between  the  United  States 
and  England,  partook  largely  of  this  character,  and  some  judi- 
cious historians  have  denominated  it  the  war  of  American  Inde- 
pendence, as  distinguished  from  the  war  of  the  American  Revo- 
lution, by  which  the  revolted  colonies  attained  the  position  of  a 
distinct  and  separate  sovereignty. 

§  8.  Wars  of  opinion.  Wars  of  opinion  have  been  sub-divided 
into  two  classes,  political  wars  and  religious  wars.  As  examples 
of  the  former,  we  may  mention  those  which  the  Vendeans  have 
sustained  in  support  of  the  Bourbons,  and  those  France  sus- 
tained against  the  Allies,  as  also  those  of  propagandism  waged 
against  the  smaller  European  states  by  the  republican  hordes  of 
the  French  revolution.  As  examples  of  the  latter  we  may 
mention  the  Jewish  wars,  the  wars  of  Islamism,  those  of  the 
crusades,  and  of  the  reformation.  Religious  wars  are  the  most 
cruel  and  bloody,  and  are  often  carried  on  without  any  regard 
to  the  rules  of  international  law.  All  wars  of  opinion  are  more 
cruel  than  those  resulting  from  principle,  policy  or  necessity. 

§  9.  Civil  wars.  This  term  is  usually  applied  to  hostile  ope- 
rations carried  on  between  different  parties  of  the  same  state,  as 
the  wars  of  the  Roses,  in  England,  of  the  League,  in  France, 
of  the  Guelphs  and  Ghibellines  in  Italy,  and  of  the  factions  in 
Mexico  and  South  America.     Wars  of  insurrection,  of  rebellion, 


CH.  XIV.— DIFFERENT  KINDS  OF  WAR.  153 

and  of  revolution,  come  under  the  general  head  of  civil  wars, 
and  are  governed  by  the  same  rules  so  far  as  regards  interna- 
tional law  and  the  laws  of  war. 

§  10.  General  laws  of  war  apply  to  civil  wars.  It  may  be 
stated,  as  a  general  rule,  that  the  laws  of  war,  as  understood 
and  defined  by  the  law  of  nations,  govern  in  the  commerda  belli, 
or  belligerent  intercourse  of  the  contending  parties  in  civil  wars. 
Thus,  combatants  are  distinguished  from  non-combatants; 
troops  regularly  organized  from  guerrilla  bands;  sieges  and 
blockades  are  to  be  conducted  according  to  the  rules  applicable 
thereto ;  prisoners  who  surrender  or  are  taken  in  arms,  are  to 
be  treated  as  prisoners  of  war,  and  may  be  exchanged  or  paroled 
in  the  usual  way ;  spies  may  be  tried  and  executed ;  truces  may 
be  made ;  capitulations  entered  into,  etc. 

§  11.  This  implies  no  recognition  of  their  government.  But 
the  adoption  of  rules  of  regular  warfare  toward  rebels  does  not 
imply  any  recognition  of  their  government,  if  they  have  set  up 
one,  as  an  independent  power,  nor  of  themselves  as  legitimate 
belligerents ;  nor  does  it  afford  any  ground  whatever  to  neutrals 
for  acknowledging  or  treating  such  rebels  or  their  government 
as  constituting  an  independent  or  belligerent  power. 

§  12.  Rebels  nevertheless  amenable  to  civil  law.  Nor  does  the 
adoption  of  such  rules  toward  rebels  imply  any  engagement 
with  them  extending  beyond  the  limits  of  the  rules  themselves. 
Treating  them  as  prisoners  of  war  when  captured,  and  conclud- 
ing cartels,  or  other  warlike  agreements  with  them,  has  never 
prevented  the  legitimate  government  from  trying  and  punishing 
them  for  high  treason,  or  any  other  offense  against  the  laws  to 
which  they  owed  obedience,  unless  they  were  exempted  by  spe- 
cial agreement,  or  included,  in  a  general  amnesty,  made  or  rati- 
fied by  the  supreme  power  of  the  state.  It  is  usual,  however, 
to  apply  the  extreme  penalties  of  the  law  to  the  leaders  only. 

§  13.  Wars  of  conquest.  Wars  of  conquest  are  those  under- 
taken for  the  acquisition  of  territory  and  the  extension  of  empire, 
like  those  of  the  Eomans  in  Gaul  and  Britain,  of  the  English  in 


154        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

India,  Africa,  and  America,  of  the  French  in  Egypt  and  Africa, 
of  the  Spaniards  in  America,  and  of  the  Russians  in  Circassia 
and  Turkey.  The  recent  war  of  the  United  States  against 
Mexico,  partook  largely  of  the  character  of  a  war  of  conquest, 
at  least  in  its  prosecution. 

§  14.  National  wars.  National  wars  are  those  where  the  great 
body  of  the  people  of  a  state  take  up  arms  and  join  in  the  con- 
test, like  those  of  the  Swiss  against  Austria  and  the  Duke  of 
Burgundy,  of  the  Catalans  in  1712,  of  the  Dutch  against  Philip 
II.,  of  the  Americans  against  England,  of  the  Poles  and  Cir- 
cassians against  Russia,  and  of  the  Hungarians  against  Austria. 
A  war  may  be  a  war  of  insurrection,  or  revolution,  or  indepen- 
dence, and,  at  the  same  time,  a  national  war. 

§  15.  Wars  of  intervention.  Wars  of  intervention  are  those 
where  one  state  interferes  in  favor  of  a  particular  state  as  against 
others,  or  in  favor  of  a  particular  party,  sovereign,  or  family  in 
a  state.  This  intervention  is  divided  into  two  classes,  according 
as  it  is  made  with  respect  to  the  internal  or  external  affairs  of  a 
nation.  The  interference  of  Russia  in  the  affairs  of  Poland,  of 
England  in  the  government  of  India,  of  Austria  and  the  allied 
powers  in  the  affairs  of  France  during  the  revolution,  and  under 
the  empire,  are  examples  under  the  first  head.  The  interven- 
tion of  the  Elector  Maurice  of  Saxony  against  Charles  V.,  of 
King  William  against  Louis  XIV.  in  1688,  of  Russia  and 
France  in  the  seven  years  war,  of  Russia  again  between  France 
and  Austria  in  1805,  and  between  France  and  Prussia  in  1806, 
of  France,  Great  Britain,  and  Sardinia,  between  Turkey  and 
Russia  in  1854,  are  examples  under  the  second  head. 

§  16.  Public  wars.  A  public  war  is  one  carried  on  under  the 
direction,  or,  at  least,  with  the  sanction  of  the  supreme  authority 
of  the  state.  "  If  it  is  declared  in  form,"  says  Wheaton,  "  or  is 
duly  commenced,  it  entitles  both  the  belligerent  parties  to  all 
-the  rights  of  war  against  each  other.  The  voluntary  or  positive 
law  of  nations  makes  no  distinction  in  this  respect,  between  a 
just  and  unjiLst  war.     A  war  in  form,  or  duly  commenced,  is  to 


CH.  XIV.— DIFFERENT  KINDS  OF   WAR.  155 

be  considered,  as  to  its  eifects,  as  just  on  both  sides.  Whatever 
is  permitted  by  the  laws  of  war  to  one  of  the  belligerent  parties, 
is  equally  permitted  to  the  other." 

§  17.  Private  wars.  A  'private  war  is  one  carried  on  by  indi- 
viduals, or  united  bodies  of  individuals,  without  the  authority 
or  sanction  of  the  state  of  which  they  are  subjects.  Such  con- 
tests may  take  place  between  individuals  of  the  same  state,  or 
of  different  states.  The  first  are  not  the  objects  of  international 
law,  but  of  the  local  laws  and  jurisdiction  of  the  particular 
state.  The  second,  may,  or  may  not,  belong  to  international 
jurisprudence,  according  to  the  circumstances  of  each  particular 
case.  As  has  already  been  said,  every  state  is,  in  general, 
responsible  for  the  acts  of  its  subjects  while  within  its  control 
and  jurisdiction ;  so,  also,  is  it  bound  to  protect  its  subjects  in 
all  their  just  rights,  and  to  procure  indemnity  for  any  wrongs 
that  may  be  inflicted  on  them.  But  the  acts  of  private  indi- 
viduals, whether  citizens  or  foreigners,  are,  as  a  general  rule,  to 
be  judged  of  and  punished  by  the  tribunals,  and  according  to 
the  laws  of  the  place  where  they  are  committed.  Grotius  has 
devoted  considerable  space  to  prove  that  some  kinds  of  private 
war  are  not  repugnant  to  the  law  of  nature,  and  therefore  may 
be  lawfully  waged.  But  his  reasoning  is  not  applicable  to  the 
present  system  of  international  jurisprudence. 

§  18.  Mixed  wars.  A  contest  by  force  between  different  mem- 
bers of  the  same  society  or  state,  has  sometimes  been  called  a 
mixed  war,  Grotius  regards  such  a  war  as  pMic  on  the  side 
of  the  established  authorities,  and  private  on  the  part  of  those 
who  resist  such  authorities.  Such  a  contest,  on  the  part  of  indi- 
viduals against  the  established  government,  may  be  a  mere 
insurrection  or  rebellion,  and  the  acts  of  such  individual  insur- 
gents, or  rebels,  in  resisting  or  opposing  the  authority  of  the 
government,  may,  as  already  stated,  be  punished  according  to 
municipal  law  which  they  have  violated ;  but  where  the  con- 
test assumes  the  character  of  a  public  war,  as  defined  and  recog- 
nized by  the  law  of  nations,  it  is  the  general  usage  for  other 


156        INTERNATIONAT   LAW  AND  LAWS  OF   WAR. 

states  to  concede  to  both  parties  the  rights  of  war,  so  far  as 
regards  the  law  of  blockades,  of  contraband,  etc.  It  must  be 
remembered,  however,  that  every  insurrection  or  rebellion  is  by 
no  means  a  public  war,  and  a  state  which  recognizes  it  as  such, 
does  so  under  the  responsibilities  which  are  imposed  by  the  laws 
of  international  comity. 

§  19.  Perfect  and  imperfect  wars.  Hostile  collisions  of  states 
have  sometimes  been  divided  into  perfect  and  imperfect  wars. 
A  perfect  war  is  where  the  whole  state  is  placed  in  the  legal 
attitude  of  a  belligerent  toward  another  state,  so  that  every 
member  of  the  one  nation  is  authorized  to  commit  hostilities 
against  every  member  of  the  other,  in  every  place,  and  under 
every  circumstance,  permitted  by  the  general  laws  of  war,  and 
subject  only  to  the  limitations  and  exceptions  prescribed  by  such 
laws.  An  imperfect  war  is  limited,  as  to  places,  persons,  and 
things.  Such  was  the  character  of  the  hostilities  authorized  by 
the  United  States  against  France  in  1798. 

§  20.  Solemn  and  non-solemn  wars.  Grotius  divides  public 
wars  into  solemn  wars  and  wars  non-solemn.  The  former  in- 
cludes all  those  which  are  waged  under  the  authority  of  the 
state,  and  are  duly  commenced  or  declared  in  form.  Both  the 
authority  and  the  formality  are  requisite  to  constitute  a  solemn 
war.  "  But  a  public  war,  less  solemn,"  says  Grotius,  "  may  be 
without  those  formalities,  (of  a  solemn  war,)  and  be  made 
against  private  men,  and  have  for  its  authority  any  magistrate. 
And,  indeed,  if  we  consider  the  thing  without  respect  to  the 
civil  law,  every  magistrate  seems  to  have  the  power  of  making 
war,  as  in  the  defense  of  the  people  entrusted  to  him,  so,  also, 
to  exercise  that  jurisdiction,  if  violence  be  oifered.  But,  since 
by  war  the  whole  city,  or  state,  is  endangered,  therefore  it  is 
provided,  by  the  laws  of  almost  all  nations,  that  war  be  not 
made  but  by  the  authority  of  him  who  has  the  sovereign  power 
in  the  state."  But  if  the  hostile  act  of  the  subordinate  officer 
be  approved  and  ratified  by  the  sovereign  power  of  the  state, 
"  this  approbation  renders  the  war  solemn,  by  reflecting  back, 


CH.  XIV.— DIFFERENT  KINDS  OF  WAR.  157 

as  it  were,  an  authority  upon  it,  so  that  it  obliges  the  whole 
commonwealth." 

§  21.  Lawful  and  unlawful  wars.  Vattel  divides  all  hostile 
collisions  between  nations,  into  "  two  sorts  of  wars,  lawful  and 
unlavjful.^^  Unlawful  wars  are  those  undertaken  "without 
apparent  cause,"  and  for  "  havoc  and  pillage,"  and  all  which  do 
not  come  under  this  head  are  classed  as  lawful  wars.  Unlawful 
wars  are  such  as  were  waged  by  the  "  Grandes  compagnies," 
which  had  assembled  in  France  during  the  wars  with  the 
English ;  armies  of  banditti  which  ranged  about  Europe  purely 
for  spoil  and  plunder.  Such  were  the  cruises  of  the  JillibmterSy 
without  commission,  and  in  time  of  peace ;  and  such,  in  general, 
are  the  depredations  of  pirates.  To  the  same  class  belong 
almost  all  the  expeditions  of  the  African  corsairs,  though 
authorized  by  a  sovereign,  they  being  founded  on  no  apparent 
just  cause,  and  whose  only  motive  is  the  avidity  of  captures. 
I  say  these  two  sorts  of  war,  lawful  and  unlawfvly  are  to  be 
carefully  distinguished,  their  effects,  and  the  rights  arising  from 
them,  being  very  different. 

14 


CHAPTER  Xy. 

DECLARATION   OF  WAR  AND  ITS  EFFECTS. 

§  1.  By  whom  war  is  to  be  declared.  The  right  of  making 
war,  as  well  as  the  right  of  authorizing  retaliations,  reprisals, 
and  other  forcible  means  of  settling  international  disputes, 
belongs,  in  every  civilized  nation,  to  the  supreme  power  of  the 
state,  whatever  that  supreme  power  may  be,  or  however  it  may 
be  constituted.  As  states  are  known  to  each  other  only  through 
their  constituted  authorities,  so  all  their  relations,  whether 
peaceful  or  hostile,  must  be  settled  by  their  recognized  govern- 
ments. They  cannot  be  legally  changed  or  interfered  with  by 
individuals. 

§  2.  Ancient  modes  of  declaration.  It  was  customary,  in 
former  times,  to  precede  hostilities  by  a  public  declaration,  com- 
municated to  the  enemy.  This  was  always  done  by  the  ancient 
Greeks  and  Romans.  The  latter  first  sent  the  chief  of  the 
feciales,  called  the  pater-patratuSy  to  demand  satisfaction  of  the 
offending  nation ;  and  if,  within  the  space  of  thirty-three  days, 
no  satisfactory  answer  was  returned,  the  herald  called  the  gods 
to  witness  the  injustice,  and  came  away,  saying  that  the  Romans 
would  consider  upon  the  measures  to  be  adopted.  The  matter 
was  then  referred  to  the  senate,  and,  when  the  war  was  resolved 
on,  the  herald  was  sent  back  to  the  frontier  to  make  declaration 
in  due  form.  Invasions,  without  such  public  notice,  were  looked 
upon  as  unlawful,  and  no  nation  was  regarded  as  an  enemy  of 
the  Roman  people  until  war  was  thus  publicly  declared  against 
it. 

§  3.  Modem  practice.     But,  in  modern  times,  the  practice  of  a 

158 


CH.  XV.— DECLARATION  OF  WAR.  I59 

formal  declaration  to  the  enemy  has  fallen  into  entire  disuse,  the 
belligerents  limiting  themselves  to  a  public  declaration  within 
their  own  territories  and  to  their  own  people.  The  latest  ex- 
ample of  a  public  declaration  to  the  enemy,  was  that  of  France 
against  Spain,  at  Brussels,  in  1735,  by  heralds  at  arms,  accord- 
ing to  the  forms  observed  during  the  middle  ages. 

§  4.  Declaration  sometimes  omitted.  Notwithstanding  a  very 
general  accordance,  in  modern  wars,  with  the  doctrine  of  uni- 
lateral declaration,  there  are  quite  a  number  of  instances  where 
wars  between  the  most  civilized  nations  have  been  commenced 
and  carried  on  without  a  formal  declaration  of  any  kind.  But 
these  instances  have  generally  resulted  from  peculiar  circum- 
stances, which  rendered,  or  seemed  to  render,  a  public  declara- 
tion unnecessary  or  inconvenient ;  they  are,  therefore,  exceptions 
to  the  general  rule  established  by  modern  usage. 

§  5.  Conditional  declaration.  Declarations  of  war  may  be 
either  absolute  or  conditional.  Hostilities  result  at  once  from 
the  former,  and  the  two  nations  are  regarded  as  belligerents 
from  the  date  of  the  declaration.  But  the  demand  of  the  one 
power  upon  the  other  may  be  accompanied  by  a  notification  that 
hostilities  will  be  commenced  unless  satisfaction  upon  some  mat- 
ter specified  be  obtained  immediately,  or  within  a  certain  lim- 
ited time.  In  this  case  the  war  dates  from  the  commencement 
of  hostilities. 

§  6.  Offers  after  declaration.  If  the  enemy,  says  Vattel,  on 
either  declaration  offers  equitable  conditions  of  peace,  the  war 
is  to  be  suspended,  for  whenever  justice  is  done,  all  right  of 
employing  force  is  superseded.  To  these  offers,  however,  are  to  be 
added  good  and  sufficient  securities,  for  we  are  under  no  obliga- 
tions to  suffer  ourselves  to  be  amused  by  empty  proposals. 
Moreover,  we  have  a  right  to  demand  security,  not  only  for  the 
principal  objects  for  which  hostilities  were  declared,  but  also  for 
the  expenses  incurred  in  making  preparations  for  tlie  war. 

§  7.  Object  of  declaration  in  a  defensive  war.  Although  Vat- 
tel strenuously  insists  upon  the  ancient  rule,  that  the  declaration 


160        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

of  war  must,  in  general,  be  communicated  to  the  state  against 
which  it  is  made,  he  makes  the  case  of  a  war  strictly  defensive 
an  exception.  It  has  already  been  shown  that  modern  usage 
does  not  absolutely  require  a  formal  declaration  in  any  case,  ex 
debito  justitioe  i7iter  gentes^  although  some  public  act,  recognizing 
the  existence  of  the  war,  may  be  required  by  public  or  muni- 
cipal law,  in  order  to  determine  the  duties  and  relations  of  the 
subjects  of  the  belligerents.  Such  recognition  seems  as  neces- 
sary in  a  defensive  as  in  an  offensive  war. 

§  8.  Effect  on  individuals.  A  war  duly  declared,  or  officially 
recognized,  is  not  merely  a  contest  between  the  governments  of 
the  hostile  states  in  their  political  character  or  capacity;  on  the 
contrary,  its  first  effect  is  to  place  every  individual  of  the  one 
state  in  legal  hostility  to  every  individual  of  which  the  other  is 
composed,  and  these  individuals  retain  the  legal  character  of 
enemies,  in  whatever  country  they  may  be  found.  In  the  next 
place,  all  the  property  of  the  one  state,  and  of  each  of  its  citi- 
zens, is  deemed  hostile  with  respect  to  the  opposing  belligerent. 

§  9.  On  commerce,  etc.  One  of  the  immediate  and  important 
consequences  of  this  principle,  which  has  been  fully  confirmed 
by  the  usages  of  modern  warfare,  and  by  the  decisions  of  the 
judicial  tribunals  of  Europe  and  the  United  States,  is,  that  a 
declaration,  or  recognition  of  war,  effects  an  absolute  interruption 
and  interdiction  of  all  commercial  intercourse  and  dealings 
between  the  subjects  of  the  two  countries.  The  idea,  says  Kent, 
that  any  commercial  intercourse,  or  pacific  dealing,  can  lawfully 
subsist  between  the  people  of  the  powers  at  war,  except  under 
the  clear  and  express  sanction  of  the  government,  and  without 
a  special  license,  is  utterly  inconsistent  with  the  duties  growing 
out  of  a  state  of  war.  It  is  a  well  settled  doctrine,  in  the 
English  courts,  and  with  the  English  jurists,  that  there  cannot 
exist,  at  the  same  time,  a  war  of  arms  and  a  peace  of  commerce. 

§  10.  Carrying  supplies  to  a  colony,  etc.  "  This  strict  rule," 
says  Kent,  "  has  been  carried  so  far  in  the  British  admiralty,  as 
to  prohibit  a  remittance  of  supplies  even  to  a  British  colony 


CH.  XV.— DECLARATION  OF   WAR.  \Q\ 

during  its  temporary  subjection  to  the  enemy,  and  when  the 
colony  was  under  the  necessity  of  supplies,  and  was  only 
partially  and  imperfectly  supplied  by  the  enemy.  The  same 
interdiction  of  trade  applies  to  ships  of  truce,  or  cartel  ships, 
which  are  a  species  of  neutral  navigation,  intended  for  the 
recovery  of  the  liberty  of  prisoners  of  war/' 

§  11.  Only  exception  to  a  rule  of  non-intercourse.  The  only 
exceptions  to  this  strict  and  rigorous  rule  of  international  juris- 
prudence, are  "  contracts  of  necessity,  founded  on  a  state  of 
war,  and  engendered  by  its  violence.^'  All  ransom  bills  come 
under  this  exception,  as,  also,  bills  of  exchange  drawn  by  a 
prisoner  in  the  enemy's  country  for  his  own  subsistence.  In 
the  case  of  a  bill  of  exchange  drawn  upon  England,  by  a 
British  prisoner  in  France,  for  his  own  subsistence,  and  endorsed 
to  an  alien  enemy,  the  latter  was  allowed  to  enforce  it  on  the 
return  of  peace. 

§  12.  Effect  on  subjects  of  an  aUy.  "  It  is  equally  illegal," 
says  Kent,  "  for  an  ally  of  one  of  the  belligerents,  and  who 
carries  on  the  war  conjointly,  to  have  any  commerce  with  the 
enemy.  A  single  belligerent  may  grant  licenses  to  trade  with 
the  enemy,  and  dilute  and  weaken  his  own  rights  at  pleasure, 
but  it  is  otherwise  when  allied  nations  are  pursuing  a  common 
cause.  The  community  of  interests,  and  object,  and  action, 
creates  a  mutual  duty  not  to  prejudice  that  joint  interest ;  and 
it  is  a  declared  principle  of  the  law  of  nations,  founded  on  very 
clear  and  just  grounds,  that  one  of  the  belligerents  may  seize 
and  inflict  the  penalty  of  forfeiture  on  the  property  of  a  subject 
of  a  co-ally  engaged  in  a  trade  with  a  common  enemy,  and 
thereby  affording  him  aid  and  comfort,  whilst  the  other  ally  was 
carrying  on  a  severe  and  vigorous  warfare.  It  would  be  con- 
trary to  the  implied  contract  in  every  such  warlike  confederacy, 
that  neither  of  the  belligerents,  without  the  other's  consent, 
shall  do  anything  to  defeat  the  common  object." 

§  13.  On  subjects  of  an  enemy  in  our  territory.  One  of  the 
immediate  consequences  of  the  position  in  which  the  citizens 
14 «  V 


1G2        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

and  subjects  of  belligerent  states  are  placed  by  the  declaration 
of  war,  is,  that  all  the  subjects  of  one  of  the  hostile  powers, 
within  the  territory  of  the  other,  are  liable  to  be  seized  and 
retained  as  prisoners  of  war.  But  this  extreme  right,  founded 
on  the  positive  law  of  nations,  has  been  stripped  of  much  of  its 
rigor  in  modern  warfare,  by  the  milder  rules  resulting  from  the 
usage  of  nations,  the  stipulations  of  treaties,  and  the  municipal 
laws  and  ordinances  of  particular  states.  These  affect,  more  or 
less,  the  exercise  of  this  extreme  right  of  war ;  but  the  right 
itself  still  remains,  and  may,  under  certain  circumstances,  be 
enforced,  at  the  discretion  of  the  belligerent. 

§  14.  Laws  of  particular  states.  In  England  it  was  provided 
by  magna  charta,  that  upon  the  breaking  out  of  war,  foreign 
merchants  found  in  England,  and  belonging  to  the  country  of 
the  enemy,  should  be  attached,  "  without  harm  to  body  or  goods," 
until  it  be  known  how  English  merchants  were  treated  by  the 
enemy.  By  the  statute  of  27  Edward  III.,  17,  foreigners  were 
to  have  convenient  warning  of  forty  days,  by  proclamation,  to 
depart  the  realm  with  their  goods.  The  act  of  congress  of  July 
6th,  1798,  authorized  the  President,  in  case  of  war,  to  direct  the 
conduct  to  be  observed  toward  subjects  of  the  hostile  nation, 
being  aliens  and  within  the  United  States,  and  in  what  case, 
and  upon  what  security  their  residence  should  be  permitted ; 
and  it  declared,  in  reference  to  those  who  were  to  depart,  that 
they  should  be  allowed  such  reasonable  time  as  might  be  con- 
sistent with  the  public  safety,  and  according  to  the  dictates  of 
humanity  and  national  hospitality,  "  for  the  recovery,  disposal, 
and  removal  of  their  goods  and  effects,  and  for  their  depar- 
ture." 

§  15.  Enemy's  property  In  territory  of  belligerents.  What  we 
have  said  of  the  detention  of  the  enemy's  person,  also  holds 
good  with  respect  to  the  right  to  seize  and  confiscate  all  enemy's 
property  found  within  our  territory  at  the  commencement  of  hos- 
tilities. In  former  times,  this  right  was  exercised  with  great 
rigor,  but  it  has  now  become  an  established,  though  not  inflex- 


CH.  XV.— DECLARATION  OF   WAR.  163 

ible,  rule  of  international  law,  that  such  property  is  not  liable 
to  confiscation  as  a  prize  of  war.  This  rule,  says  chief  justice 
Marshall,  "  like  other  precepts  of  morality,  of  humanity,  and 
even  of  wisdom,  is  addressed  to  the  judgment  of  the  sovereign 
— it  is  a  guide  which  he  follows  or  abandons  at  his  will ;  and, 
although  it  cannot  be  disregarded  by  him  without  obloquy,  yet 
it  may  be  disregarded.  It  is  not  an  immutable  rule  of  law,  but 
depends  on  political  considerations,  which  may  continually 
vary."  Formerly  Great  Britain  treated  the  goods  of  enemy's 
merchants  precisely  as  the  goods  of  English  merchants  were 
treated  in  the  enemy's  country.  But  in  recent  maritime  wars, 
at  least  prior  to  the  Crimean  war,  England  constantly  condemned 
as  droits  of  admiralty  the  property  of  an  enemy  found  in  her 
ports  at  the  breaking  out  of  hostilities,  "and  this  practice," 
says  Wheaton,  "  does  not  appear  to  have  been  influenced  by  the 
corresponding  conduct  of  the  enemy  in  that  respect." 

§  16.  Conduct  of  the  belligerents  in  the  Crimean  war.  On  the 
declaration  of  a  war  between  the  Ottoman  Porte  and  Russia,  in 
October,  1853,  a  notice  was  issued  by  the  latter  government  to 
the  effect  that,  as  the  Porte  had  not  imposed  an  embargo  on 
Russian  vessels  in  its  ports,  etc.,  the  Russian  government,  on  its 
part,  grants  liberty  to  Turkish  vessels  in  its  ports  to  return  to 
their  destination  till  the  10th  (22d)  of  November.  After  the 
declaration  of  hostilities  by  France  and  England  against  Rus- 
sia, similar  declarations  were  made  by  these  powers.  Russia 
allowed  English  and  French  vessels  six  weeks  from  the  25th  of 
April,  1854,  to  take  on  board  their  cargoes  and  sail  from  Rus- 
sian ports  in  the  Black  Sea,  the  sea  of  Azoff,  and  the  Baltic,  and 
six  weeks  from  the  opening  of  navigation,  to  leave  the  ports  of 
the  White  Sea. 

§  17.  Debts  due  an  enemy.  Debts  contracted  before  the  decla- 
ration of  war,  and  owing  by  one  belligerent,  or  its  allies,  to  the 
enemy,  are  necessarily  merged  in  the  war,  and  must  abide  the 
issue  of  the  contest,  or  rather  the  stipulations  of  the  treaty  of 
peace  by  which  it  is  terminated.     Formerly  debts  contracted  in 


164        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

time  of  peace,  and  owing  by  the  belligerent  state,  or  its  subjects, 
to  the  subjects  of  the  enemy,  were  also  regarded  as  annulled  or 
confiscated  by  the  declaration  of  war.  This  doctrine  is  fully 
recognized  in  the  writings  of  Cicero,  Grotius,  Puffendorff,  Byn- 
kershoek,  and  others.  But,  according  to  Yattel,  the  rigor  of 
this  rule  was  afterwards  relaxed,  and  the  opposite  custom  grew 
up  in  its  place,  which  has  now  become  so  general  throughout 
Europe,  that  the  sovereign  who  should  enforce  the  former  rule, 
would  be  regarded  as  violating  good  faith ;  for  strangers  trusted 
his  government  or  subjects  only  from  tlie  firm  persuasion  that 
the  modern  custom  would  be  observed.  Emerigon  and  Martens 
advocate  the  same  doctrine.  The  question  is  also  most  ably 
discussed  by  Hamilton  in  the  numbers  of  Camillus,  published 
in  1795. 

The  supreme  court  of  the  United  States  has  decided  that  the 
right,  stricto  jure,  still  exists  as  a  settled  and  undoubted  right 
of  war  recognized  by  the  law  of  nations,  altliough  it  was,  at  the 
same  time,  admitted  to  be  the  universal  practice  at  present  to 
forbear  to  seize  and  confiscate  debts  and  credits,  as  also  to  seize 
and  confiscate  enemy's  tangible  property  found  in  the  country 
at  the  opening  of  the  war.  The  court  would  not  confiscate 
without  an  act  of  the  legislative  power  declaring  its  will  that 
such  property  should  be  condemned. 

§  18.  Distinction  between  public  and  private  debts.  English 
writers  make  a  distinction  between  the  debts  of  the  state  and 
those  of  private  citizens  to  citizens  of  the  enemy,  the  former  not 
being  confiscable  even  by  the  most  rigid  rule,  although  the  lat- 
ter may,  in  stricto  jure.  By  the  treaty  of  1794,  between  the 
United  States  and  Great  Britain,  it  was  stipulated  that  debts 
due  from  individuals  of  the  one  nation  to  individuals  of  the 
other,  should  never,  in  any  event  of  war  or  national  differences, 
be  sequestrated  or  confiscated. 

§  19.  Distinction  made  by  English  text- writers.  While  the 
English  text- writers  and  jurists  have  contended  for  the  right  to 
seize  and  sequestrate  the  property  of  an  alien  enemy  found  in 


OH.  XV.— DECLARATION  OF  WAR.  165 

British  territory,  at  the  declaration  of  a  war,  as  a  right  con- 
ceded by  the  law  of  nations,  they  have  almost  uniformly  denied 
the  right  to  confiscate  debts  due  to  such  enemy,  on  the  ground 
that  usage  and  custom  have  annulled  that  right.  The  distinc- 
tion thus  attempted  to  be  drawn  between  debts  and  other  pro- 
perty is  not  well  founded  in  reason  or  authority,  but  has  re- 
sulted, apparently,  from  policy  and  interest. 

§  20.  Ebcamples  of  its  enforcement.  Mr.  Wheaton  has  given 
several  examples  of  the  enforcement  of  this  distinction,  in  all 
of  which  it  enured  greatly  to  the  advantage  of  England.  The 
distinction  seems  to  have  been  made  and  enforced  mainly  for 
her  benefit.  It  is  not  generally  approved  by  the  text-writers  of 
other  countries. 

§  21.  Commencement  of  war,  how  determined.  Where  there 
has  been  no  declaration  of  war,  or  other  public  act  to  fix  the 
time  of  its  commencement,  it  is  sometimes  difficult  to  determine 
upon  individual  conduct,  or  the  character  of  property.  Where 
the  government  itself  has  fixed  no  positive  time  for  the  com- 
mencement of  hostilities,  either  past  or  future,  and  where  its 
intentions  are  at  all  doubtful,  the  conduct  of  individuals  is  entitled 
to  a  lenient  and  favorable  construction.  A  court  will  not,  in 
such  cases,  condemn  property  as  involved  in  trade  with  the 
enemy,  unless  fully  satisfied,  not  only  that  hostilities  existed, 
but  that  the  fact  was  so  public  and  notorious  that  the  knowledge 
of  its  existence  was  justly  to  be  imputed' to  the  parties  by  whom 
the  acts  of  supposed  illegality  were  committed  or  authorized.  It 
would  be  plainly  unjust  to  confiscate  property,  or  annul  con- 
tracts, where  reasonable  doubts  exist,  either  as  to  the  intentions 
of  the  government,  or  the  knowledge  of  the  parties. 

§  22.  In  regard  to  neutrals.  The  same  leniency  is  certainly 
due  to  neutrals  in  such  cases.  Where  there  has  been  no  official 
declaration  of  Avar,  and  no  notification  by  manifesto  of  its  actual 
existence,  the  conduct  of  neutrals  is  entitled  to  the  most  favor- 
able construction,  and  neutral  property  cannot  be  condemned, 
for  violation  of  neutral  duty,  without  proof  that  the  war  de facto 


166        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

was  so  public  and  notorious  that  the  neutral  could  not  have  been 
in  ignorance  of  its  existence. 

§  23.  Effect  of  declaration  of  war  on  treaties.  A  declaration 
of  war  does  not  ipso  facto  extinguish  treaties  between  the  bel- 
ligerent states.  Treaties  of  friendship  and  alliance  are  neces- 
sarily annulled  by  a  Avar  between  the  contracting  parties,  except 
such  stipulations  as  are  made  expressly  with  a  view  to  a  rupture, 
such  as  limitations  of  the  general  rights  of  war,  etc.  So  of 
treaties  of  commerce  and  navigation ;  they  are  generally  either 
suspended  or  entirely  extinguished  by  a  war  between  the  parties 
to  such  treaties.  All  stipulations,  with  respect  to  the  conduct 
of  the  war,  or  with  respect  to  the  eifect  of  hostilities  upon  the 
rights  and  property  of  the  citizens  and  subjects  of  the  parties, 
are  not  impaired  by  supervening  hostilities,  this  being  the  very 
contingency  intended  to  be  provided  for,  but  continue  in  full 
force  until  mutually  agreed  to  be  rescinded. 

§  24.  On  local  civil  laws.  We  have  thus  far  mostly  confined 
our  remarks  to  the  effects  of  a  declaration  of  war  upon  belliger- 
ent states  and  their  subjects  in  their  international  relations.  Its 
eifects  upon  the  relations  of  the  citizens  of  a  belligerent  state 
with  their  own  government  belong  to  constitutional  or  municipal 
law,  rather  than  to  general  public  law ;  nevertheless,  as  there 
are  certain  general  principles  which  govern  these  relations  in  all 
countries  and  under  all  governments,  it  may  be  proper  to  allude 
to  them  in  this  place!  For  example,  any  place,  port,  town, 
fortress,  or  section  of  country  occupied  by  the  enemy,  is,  for 
most  purposes,  regarded  in  law  as  hostile  territory,  so  long  as 
such  occupation  is  continued.  If  the  place  so  occupied  were 
previously  neutral,  or  a  part  of  our  own  territory,  it  is  no  longer 
regarded  as  such,  for  it  would  be  absurd  to  suppose  that  persons 
who  are  hostile  themselves,  or  who  are  under  a  hostile  authority, 
are  to  exercise  the  same  civil  rights  as  neutrals  or  citizens  in 
time  of  peace.  The  relations  of  the  government  to  a  place  or 
territory  so  occupied  or  situated,  are  of  a  military  character,  and 
consequently  are  not  regulated  by  the  civil  laws,  which  are  made 


CH.  XV.— DECLARATION  OF  WAR.  167 

for  the  condition  of  peace.  This  change  of  relation,  or  rule 
of  government,  does  not  result  from  anything  in  the  par- 
ticular constitution  or  laws,  but  from  the  fact  of  the  exist- 
ence of  war  and  the  hostile  occupation  of  the  place.  The 
same  rule  applies  to  a  place,  or  district  of  country,  which  is  in- 
vaded or  besieged  by  an  enemy :  the  fact  of  the  invasion  or 
beleaguerment  is,  in  itself,  a  substitution  of  military  for  civil 
authority  ;  the  absence  of  peace  suspends  the  law  of  peace,  and 
the  presence  of  war  substitutes  military  rule. 

§  25.  Declaxation  of  martial  law.  What  is  called  a  declara- 
tion of  martial  law  in  one's  own  country,  is  the  mere  announce- 
ment of  a  fact ;  it  does  not,  and  cannot  create  that  fact.  The 
exigencies  which,  in  any  particular  place,  justify  the  taking  of 
human  life  without  the  interposition  of  the  civil  tribunals,  and 
without  the  authority  of  the  civil  law,  may  justify  the  suspen- 
sion of  the  power  of  such  tribunals  and  the  substitution  of 
martial  law.  The  law  of  war,  or  at  least  many  of  its  rules,  are 
merely  the  results  of  a  paramount  necessity.  On  this  point  we 
quote  the  language  of  Attorney-General  Gushing :  "  There  may 
undoubtedly  be,  and  have  been,  emergencies  of  necessity,  capable 
of  themselves  to  produce  and  therefore  to  justify  such  suspension 
of  all  civil  law,  and  involving,  for  the  time,  the  omnipotence 
of  military  power.  But  such  a  necessity  is  not  of  the  range  of 
mere  legal  questions.  When  martial  law  is  proclaimed,  under 
circumstances  of  assumed  necessity,  the  proclamation  must  be 
regarded  as  the  statement  of  an  existing  fact,  rather  than  the 
legal  creation  of  that  fact.  In  a  beleaguered  city,  for  instance, 
the  state  of  siege  lawfully  exists,  because  the  city  is  beleaguered, 
and  the  proclamation  of  martial  law,  in  such  case,  is  but  notice 
and  authentication  of  a  fact, — that  civil  authority  has  been  sus- 
pended, of  itself,  by  the  force  of  circumstances,  and  that,  by  the 
same  force  of  circumstances,  the  military  has  had  devolved  upon 
it,  without  having  authoritatively  assumed  the  supreme  control 
of  affairs  in  the  care  of  the  public  safety  and  conservation. 


168        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

Such,  it  would  seem,  is  the  true  explanation  of  the  proclamation 
of  martial  law  at  New  Orleans  by  General  Jackson." 

§  26.  Martial  and  military  law  distinguished.  Martial  law 
has  often  been  confounded  with  military  law,  but  the  two  are 
very  different.  Military  law,  with  us,  consists  of  the  "  rules 
and  articles  of  war,''  and  other  statutary  provisions  for  the 
government  of  military  persons,  to  which  may  be  added  the 
unwritten  or  common  law  of  the  "  usage  and  customs  of  mili- 
tary service."  It  exists  equally  in  peace  and  in  war,  and  is  as 
fixed  and  definite  in  its  provisions  as  the  admiralty,  ecclesiasti- 
cal, or  any  other  branch  of  law,  and  is  equally,  with  them,  a 
part  of  the  general  law  of  the  land.  But,  in  the  words  of 
Chancellor  Kent,  "  martial  law  is  quite  a  distinct  thing."  It 
exists  only  in  a  time  of  war,  and  originates  in  military  necessity. 
It  derives  no  authority  from  the  civil  law,  (using  the  term  in 
its  more  general  sense,)  nor  assistance  from  the  civil  tribunals, 
for  it  overrules,  suspends,  and  replaces  both.  It  is  from  its 
very  nature,  an  arbitrary  power,  and  "  extends  to  all  the  inhabi- 
tants (whether  civil  or  military)  of  the  district  where  it  is  in 
force."  It  has  been  used  in  all  countries  and  by  all  govern- 
ments, and  it  is  as  necessary  to  the  sovereignty  of  a  state  as  the 
power  to  declare  and  make  war. 

§  27.  Martial  law  in  European  countries.  The  laws  of  dif- 
ferent countries,  with  respect  to  the  application  and  exercise  of 
this  power,  are  very  different.  In  the  jurisprudence  of  France, 
for  example,  three  conditions  of  things  are  carefully  defined  and 
provided  for :  1st,  The  state  of  peace,  where  all  persons  are  gov- 
erned by  the  civil  or  military  authority,  according  to  the  class 
to  which  they  belong,  and  the  law  applicable  to  the  par- 
ticular case;  2d,  The  state  of  war,  where  the  law  and  au- 
thority governing  depends  upon  the  particular  condition  of  the 
place  and  circumstances  of  the  case,  the  civil  authority  some- 
times acting  in  concert  with,  and  sometimes  in  subordination  to 
the  military ;  and  3d,  The  state  of  siege,  where  the  civil  law  is 
suspended  for  the  time  being,  or,  at  least,  is  made  subordinate 


CH.  XV.— DECLARATION  OF   WAR.  169 

to  the  military,  and  the  place  is  put  under  martial  law,  or  under 
the  authority  of  the  military  power.  This  may  result  from  the 
presence  of  a  foreign  enemy,  or  by  reason  of  a  domestic  insur- 
rection, and  the  rule  applies  to  a  district  of  country  as  well  as 
to  a  fortress  or  city.  A  similar  system  is  adopted  in  Spain,  and 
in  most  of  the  countries  of  continental  Europe.  "  The  state  of 
siege  of  the  continental  jurists,'^  says  Gushing,  "is  the  pro- 
clamation of  martial  law  of  England  and  the  United  States, 
only  we  are  without  law  on  the  subject,  while  in  other  countries 
it  is  regulated  by  known  limitations.'^  The  English  common 
law  authorities,  and  commentators,  generally  confound  martial 
with  military  law,  and,  consequently,  throw  very  little  light 
upon  the  subject  considered  as  a  domestic  fact,  and  in  parlia- 
mentary debates,  it  has  usually  been  discussed  as  a  facty  rather 
than  as  forming  any  part  of  their  system  of  jurisprudence. 
Nevertheless,  there  are  numerous  instances  in  which  martial 
law  has  been  declared  and  enforced  in  time  of  rebellion  or  insur- 
rection, not  only  in  India  and  British  colonial  possessions,  but 
also  in  England  and  Ireland.  It  seems  that  no  act  of  parlia- 
ment is  required  to  precede  such  declaration,  although  it  is 
usually  followed  by  an  act  of  indemnity,  when  the  disturbances 
which  called  it  forth  are  at  an  end,  in  order  to  give  constitu- 
tional existence  to  the  fact  of  martial  law. 

§  28.  Martial  law  in  the  United  States.  Martial  law  is  not 
mentioned  by  name  in  the  Constitution  of  the  United  States ; 
but  that  instrument  recognizes  the  law  of  nations  by  conferring 
upon  congress  the  "  power  to  define  and  punish  *  *  *  oiFenses 
against  the  laws  of  nations."  The  law  of  nations,  therefore, 
constitutes  a  part  of  the  law  of  the  land,  both  in  peace  and  war, 
and  that  branch  called  the  laws  of  war,  and  of  which  martial 
law  forms  a  part,  necessarily  comes  into  operation  when  the  juris- 
diction of  the  civil  tribunals  ceases.  The  constitution  also  de- 
clares that  "  the  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when,  in  case  of  rebellion  or  invasion  the 
public  safety  may  require  it."  Now,  the  suspension  of  the  pri- 
15  w 


170        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

vilege  of  the  writ  oi  habeas  corpus  is  not,  in  itself,  a  declaration 
of  martial  law;  it  is  simply  an  incident,  although  a  very 
important  incident  to  such  declaration.  In  other  words,  the 
incident  is  constitutionally  provided  for,  while  the  substance, 
or  general  principle,  is  merely  recognized,  but  in  no  other 
manner  alluded  to.  Probably  the  framers  of  that  instru- 
ment saw  the  difficulty  of  attempting  to  regulate,  by  any 
fixed  rules,  that  which  results  from  paramount  necessity  alone, 
and  which,  from  its  very  nature,  is  scarcely  susceptible  of  minute 
regulation.  Practically,  in  England  and  the  United  States,  the 
essence  of  martial  law,  is  the  suspension  of  the  privilege  of  the 
writ  of  Jiabea^  corpus, — that  is,  the  withdrawal  of  a  particular 
person,  or  a  particular  place  or  district  of  country  from  the 
authority  of  the  civil  tribunals.  A  mere  declaration  of  martial 
law,  no  matter  how  much,  "  in  case  of  rebellion  or  invasion, 
the  public  necessity  may  require  it,"  would  be  utterly  useless 
unless  accompanied  by  a  suspension  of  the  privilege  of  the  writ 
of  Jiabeas  corpus ;  for  if  the  local  civil  authorities  were  per- 
mitted, in  such  case  to  enforce  this  writ,  they  might,  and  some 
probably  would,  render  the  military  powerless  to  provide  for 
"  the    public  safety." 

§  29.  Writ  of  habeas  corpus.  The  constitution  having  pro- 
vided for  the  enforcement  of  martial  law  by  authorizing  the 
suspension  of  the  privilege  of  the  writ  of  habeas  corpus,  under 
two  coexisting  conditions :  1st.  That  "  rebellion  or  invasion," 
exists,  and  2d,  that  "  the  public  safety  requires  it,"  the  question 
arises,  who  is  to  decide  upon  the  existence  of  these  facts,  and 
then  to  declare  the  suspension  ?  Some  of  the  earlier  commen- 
tators on  the  constitution  arguing  from  a  supposed  analogy  be- 
tween that  instrument  and  the  constitution  of  England,  adopted 
the  conclusion  that  congress,  like  parliament,  had  the  exclusive 
right  to  so  judge  and  declare.  But  the  privilege  of  the  writ  of 
habeas  corpus  in  England  cannot  be  suspended  without  a  sus- 
pension of  a  constitutional  provision,  which  is  within  the  powers 
of  parliament  but  is  not  within  the  powers  of  congress.     Nor 


CH.  XV.— DECLARATION  OF  WAR.  171 

with  us  is  the  exercise  of  any  such  power  required,  for  our 
constitution  forbids  the  suspension  only  in  time  of  peace,  and 
provides  and  authorizes  it  under  the  conditions  already  named. 
Hence,  the  better  authority  is  that  the  power  to  decide  upon  the 
conditions  and  to  make  the  suspension  belongs  to  the  executive 
department  of  the  government,  and  that  congress  can  neither 
enlarge  nor  abridge  the  power  so  conferred. 

§  30.  Practice  of  our  government  in  regard  to  this  writ.  And 
the  practice  has  conformed  to  this  view.  During  the  adminis- 
tration of  President  Washington,  in  the  Pennsylvania  "Whisky 
Insurrection"  of  1794  and  1795,  the  military  authorities  en- 
gaged in  suppressing  it  disregarded  the  writs  which  were  issued 
by  the  courts  for  the  release  of  the  prisoners  who  had  been 
captured  as  insurgents.  General  Wilkinson,  under  authority 
of  President  Jeiferson,  during  the  Burr  conspiracy  of  1806, 
suspended  the  privilege  of  this  writ,  as  against  the  superior 
court  of  New  Orleans.  General  Jackson  assumed  the  right  to 
refuse  obedience  to  the  writ  of  habeas  corpus,  first  in  New  Orleans, 
in  1814,  as  against  the  authority  of  Judge  Hall,  when  the 
British  army  was  approaching  that  city ;  and  afterward  in 
Florida,  as  against  the  authority  of  Judge  Fromentin.  The 
case  of  General  AVilkinson  was  brought  directly  to  the  notice 
of  Congress,  but  that  body  refused  either  to  approve  or  to  dis- 
approve his  conduct.  At  the  beginning  of  the  rebellion  of 
1861,  President  Lincoln  claimed  the  right  to  suspend  this 
privilege,  and  continued  to  exercise  it  to  the  close  of  the  war. 
And  the  arguments  of  Mr.  Binney  in  favor  of  this  construction 
of  the  constitutional  provision,  seem  to  be  entirely  conclusive. 

§  31.  These  questions  determined  by  local  law.  But  the  ques- 
tions in  regard  to  who  may  declare  martial  law,  or  who  may 
suspend  the  privilege  of  the  writ  of  habeas  corpus,  are  simply 
questions  of  local  law.  These  powers  exist  in  the  state,  and  are 
recognized  by  international  law,  and,  as  already  stated,  foreign 
nations  have  no  right  to  question  or  interfere  with  the  constitu- 
tional division  and  assignment  of  the  sovereign  powers  of  a  state. 


CHAPTER    XVI. 

MEANS  AND   INSTRUMENTS  FOR  CARRYING  ON  WAR. 

§  1.  Duty  to  serve  and  defend  the  state.  As  a  general  rule, 
every  citizen  is  bound  to  serve  and  defend  the  state  of  which  he 
is  a  member,  as  far  as  he  is  capable.  This  concurrence,  for  the 
common  defense  and  general  security,  is  one  of  the  principal 
objects  of  every  political  association,  and  without  this  society 
could  not  be  maintained.  When,  therefore,  a  state  has  declared 
war,  every  citizen  is  bound  to  assist  in  carrying  it  to  a  success- 
ful conclusion,  whatever  may  be  his  individual  opinion  of  the 
necessity  or  propriety  of  the  resort  to  arms  by  his  own  govern- 
ment. 

§  2.  Certain  classes  usually  exempted.  Although  every  man, 
capable  of  bearing  arms,  is  bound  to  take  them  up  if  required, 
in  the  service  of  the  state,  this  duty  is  limited  and  regulated  by 
municipal  law.  At  present  most  nations  maintain  regular  military 
and  naval  forces,  which  are  increased  in  time  of  war  by  volun- 
teers, militia,  or  new  levies.  Moreover,  the  soldiers  and  sailors 
required  for  carrying  on  military  operations  are  generally  enlisted 
without  compulsion,  which  greatly  mitigates  the  evils  of  war. 
Even  where  levies  are  made  to  fill  up  the  ranks  of  the  army, 
or  to  supply  the  navy,  the  great  body  of  the  people  are  left  to 
pursue  their  ordinary  peaceful  avocations. 

§  3.  Levies  in  mass.  Occasionally,  in  great  invasions  and  for 
the  defense  of  particular  places,  general  conscriptions  or  levies  en 
masse  are  made  of  all  persons  capable  of  bearing  arnis.  All 
persons  so  held  to  military  duty  are  regarded  as  active  belliger- 

172 


CH.  XVL— MEANS  AND  INSTRUMENTS  OF  WAR.      173 

ents,  and  if  captured  by  the  opposing  party  are  to  be  treated  as 
prisoners  of  war. 

§  4,  Power  to  raise  troops.  As  a  general  rule  the  power  to 
declare  war  embraces  the  power  to  raise  and  support  armies. 
This  is  true  with  respect  to  the  state  in  its  sovereign  capacity, 
but  not  with  respect  to  the  particular  departments  into  which 
the  government  of  the  state  is  divided.  The  constitution  must 
determine  to  what  department  these  powers  shall  belong,  and 
whether  they  shall  be  combined  or  separate.  In  most  European 
countries  they  both  belong  to  the  sovereign,  and  are  regarded  as 
prerogatives  of  majesty.  In  England  the  sovereign  declares 
war,  but  he  cannot  compel  persons  to  enlist,  nor  can  he,  in  fact, 
keep  an  army  on  foot  without  the  concurrence  of  parliament. 
In  the  United  States,  congress  alone  can  declare  war,  or  author- 
ize the  raising  of  troops. 

§  5.  Duty  of  a  state  to  support  its  troops.  If  every  citizen, 
as  among  the  Romans,  took  his  turn  in  serving  in  the  army, 
such  service  would  naturally  be  gratuitous.  But  where  only  a 
portion  are  called  into  military  service,  while  the  others  are  left 
to  pursue  their  ordinary  avocations,  it  is  right  and  proper  that 
those  who  bear  arms  should  be  paid  by  those  who  do  not,  for  no 
individual  is  bound  to  do  more  than  his  proportion  for  the 
service  and  defense  of  the  State.  The  duty  of  the  state  to  sup- 
port its  troops  is  evident,  and  its  right  to  levy  taxes  for  this 
purpose  results  from  its  general  sovereign  power  over  property 
within  its  territory,  when  necessity  or  the  public  good  requires, 

§  6.  Unpaid  troops.  If  a  state  neglect  to  pay  and  provide  for 
its  troops  regularly  and  systematically,  they  will  provide  for 
themselves  by  pillage,  robbery  and  assassination.  The  horrible 
atrocities  committed  by  the  unpaid  troops  of  the  middle  ages, 
form  the  most  bloody  pages  in  the  annals  of  history.  The  rules 
of  modern  warfare  do  not  permit  the  use  of  such  troops  in  the 
field,  although  it  may  be  allowable  in  the  defense  of  a  particu- 
lar place.  This  is  simply  a  revival  of  the  Roman  law  which 
prohibited  any  man  from  lifting  a  weapon  or  striking  a  blow, 

15* 


174        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

except  in  self-defense,  against  a  public  enemy,  unless  he  had  been 
enlisted  or  enrolled  as  a  soldier,  had  taken  the  prescribed 
military  oath,  and  actually  served  under  pay. 

§  7.  Use  of  mercenaries.  Foreigners,  who  voluntarily  serve  a 
state  for  stipulated  pay,  are  called  mei'cenaries.  The  right  of 
citizens  of  one  state  to  be  so  employed  by  another,  and  of  this 
other  to  so  employ  them,  has  often  been  discussed  by  publicists. 
That  any  citizen,  with  the  consent  of  his  own  state,  may  serve 
another,  cannot  be  denied.  But,  in  doing  this,  he  changes  his 
nationality,  and  must  thereafter  look  for  support  and  protection 
to  the  state  in  whose  service  he  is  engaged.  The  right  of  a  state, 
to  permit  its  citizens  to  be  employed  in  the  military  service  of 
another,  is  very  questionable,  but  the  right  of  this  other  to  so 
employ  them,  (with  such  permission,)  cannot  be  doubted.  The 
policy  of  doing  so,  is  a  very  diiferent  question.  Mercenaries 
enlist  voluntarily,  for  no  state  has  a  right  to  require  such  ser- 
vice of  undomiciled  foreigners.  Domiciled  foreigners  may  be 
required  to  do  duty  in  the  militia,  or  the  civic  and  national 
guards,  for  the  preservation  of  order  and  the  enforcement  of  the 
laws,  within  a  reasonable  distance  of  their  place  of  domicil. 
But  such  duty  is  rather  of  a  civil  than  a  military  character.  It 
does  not  include  service  against  a  foreign  enemy,  nor  general 
military  service  in  a  civil  war. 

§  8.  Partizan  and  guerrilla  troops.  The  term  partizan  is 
sometimes  applied  to  irregular  troops  of  legitimate  organization. 
We  shall  here  consider  only  those  who  are  of  the  same  charac- 
ter as  guerrilleros  or  guerrilla  bands,  the  use  of  which  is  prohibited 
by  the  modern  laws  of  war.  Self-organization  and  self-control 
constitute  a  striking  characteristic  of  such  troops ;  but  these  are 
not  conclusive, though  prima  facie,  proofs  against  them.  More- 
over, some  of  the  worst  kind  of  guerrilla  bands  have  been  au- 
thorized and  organized  by  their  own  governments,  as  in  Spain, 
Mexico,  and  the  Rebel  States  of  America.  All  troops,  whether 
self-controlled  or  acting  under  the  orders  of  their  government, 
who  are  organized,  not  for  legitimate  warfare,  but  for  plunder, 


CK  XVI.— MEANS  AND  INSTRUMENTS  OF  WAR.       I75 

robbery,  marauding,  the  destruction  of  public  and  private  pro- 
perty, or  for  murder  and  assassination,  or  for  fighting  in  dis- 
guise, or  for  committing  any  other  act  of  perfidy,  are  not  to  be 
regarded  as  legitimate  belligerents,  who  can  plead  the  laws  of 
war  in  their  justification.  Their  acts  are  unlawful ;  if  they 
take  property,  it  is  a  military  robbery,  and  if  they  kill,  it  is  a 
military  murder, 

§  9.  Guerrilla  hands  to  be  distinguished  from  levies  en  masse. 
Some  European  writers  have  confounded  the  rules  applicable  to 
guerrilla  warfare  with  those  governing  levies  en  masse  to  repel 
invasions,  and  the  distinction  has  sometimes  been  disregarded 
in  European  wars.  In  the  invasion  of  France,  in  1814,  the  al- 
lies gave  no  quarter,  and  punished  with  death,  armed  French 
peasants,  although  they  had  been  regularly  levied  and  organized 
for  a  legitimate  purpose,  and  by  the  authority  of  their  govern- 
ment. The  proper  distinction,  however,  was  made  by  Welling- 
ton in  Spain. 

§  10.  Privateering.  A  privateer  is  a  private-armed  vessel, 
owned  and  officered  by  private  persons,  but  commissioned  by  the 
state,  or  acting  under  letters  of  marque.  Without  such  license 
or  commission  a  private  vessel  levying  war  would  be  treated  as 
a  pirate.  It  has,  however,  the  natural  right  of  self-defense 
when  attacked.  The  right  to  use  this  kind  of  naval  force,  as  a 
question  of  international  law,  is  undisputed. 

§  11.  Its  advantages  and  evils.  The  alleged  advantages  of 
employing  privateers  are,  that  a  naval  force  is  thus  procured 
more  quickly  and  cheaper  than  by  the  organization  of  a  regular 
navy ;  that  it  gives  occupation  to  vessels  and  men  which  are 
witlidrawn  from  commerce  by  the  war;  and  that  it  places  a 
smaller  state  more  nearly  on  an  equality  with  a  larger  rival.  On 
the  other  hand,  the  evils  of  privateering  are  very  great.  Its 
motive  being  plunder,  it  necessarily  has  a  corrupting  influence 
on  those  who  engage  in  it,  as  is  shown  by  the  fact  that  they  fre- 
quently become  pirates.  From  the  want  of  proper  capacity  in 
its  officers,  and  proper  discipline  in  its  crews,  it  often  leads  to 


176        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

excesses  and  cruelties.  Again,  privateers  almost  invariably  en- 
croach upon  the  rights  of  neutrals. 

§  12.  Efforts  to  abolish  it.  For  these  and  other  reasons,  the 
most  enlightened  statesmen  and  publicists  have  advocated  the 
abolition  of  privateering,  as  a  barbarous  practice,  entirely  in- 
consistent with  the  liberal  spirit  of  the  age.  During  the  war 
between  the  United  States  and  Mexico,  no  privateers  were  em- 
ployed by  either  party ;  nor  were  letters  of  marque  issued  by 
either  belligerent  in  the  Crimean  or  Italian  wars.  In  the  treaty 
of  1785  between  the  United  States  and  Prussia,  negotiated  by 
Dr.  Franklin,  it  was  provided  that  neither  of  the  contracting 
parties  should  resort  to  privateering  against  the  other.  Tem- 
porary arrangements  of  the  same  nature  were  also  made  between 
other  powers.  And  on  the  16th  of  April,  1856,  at  the  con- 
ference of  Paris,  the  jilenipotentiaries  of  Great  Britain,  France, 
Austria,  Russia,  Prussia,  Sardinia  and  Turkey  adopted  the 
declaration,  "  That  privateering  is  and  remains  abolished,''^  This 
declaration  was  not  to  be  "  binding,  except  between  those  powers 
which  have  acceded  to,  or  shall  accede  to  It."  Nearly  all,  if 
not  all,  of  the  European  and  American  States  promptly  signified 
their  accession,  except  Spain,  Mexico  and  the  United  States. 

§  13.  Attitude  of  the  United  States.  The  United  States  de- 
clined to  accede  to  the  proposition,  as  it  stood,  but  offered  to 
adopt  it  with  the  following  amendment  or  additional  clause : 
"  And  the  private  property  of  the  subjects^  or  citizens  of  a  bel- 
ligerent on  the  high  seas,  shall  be  exempted  from  seizure  by  public 
armed  vessels  of  the  other  belligerent,  except  it  be  contraband.''^ 
But  as  this  amendment  was  adopted  only  by  a  few,  the  govern- 
ment of  the  United  States,  at  the  beginning  of  the  War  of 
Rebellion,  found  itself  exposed  to  this  formidable  instrument  of 
war,  which  its  political  enemies  were  not  slow  to  use  against  it, 
even  to  the  extent  of  violating  their  own  duties  of  neutrality. 

§  14.  Privateers,  by  whom  conmiissioiied.  Letters  of  marque 
must  proceed  from  the  sovereign  power  of  the  state,  but  it  will 
depend  upon  its  own  laws  by  what  department  of  its  govern- 


CH.  XVL— MEANS  AND  INSTRUMENTS  OF  WAR.       177 

ment  they  are  to  be  issued.  "A  vessel/'  says  Phillimore, 
"  which  takes  a  commission  from  both  belligei-ents  is  guilty  of 
piracy,  for  one  authority  conflicts  with  the  other.  But  a  nicer 
question  has  arisen  with  respect  to  a  vessel  which  sails  under 
two  or  more  commissions  granted  by  allied  powers  against  a 
common  enemy.  The  better  opinion  seems  to  be,  that  such  prac- 
tice is  irregular  and  inexpedient,  but  does  not  carry  with  it  the 
substance  or  name  of  piracy."  Kent  does  not  make  this  distinc- 
tion, but  states  the  proposition  in  general  terms,  "  that  a  cruiser, 
furnished  with  commissions  from  two  different  powers,  is  liable 
to  be  treated  as  a  pirate."  Hautefeuille  says,  that  if  a  privateer 
receives  commissions  from  two  sovereigns,  she  is  to  be  treated  as 
a  pirate,  "  even  when  the  letters  of  marque  emanate  from  two 
princes  allied  for  a  common  warP 

§  15.  Vessels  of  neutral  states  acting  as  privateers.  Another 
question  to  be  noticed,  is,  what  is  the  character  of  a  vessel  of  a 
neutral  state,  armed  as  a  privateer,  with  a  commission  from  one 
of  the  belligerents  ?  Phillimore  says :  "  That  such  a  vessel  is 
guilty  of  a  gross  infraction  of  international  law,  that  she  is  not 
entitled  to  the  liberal  treatment  of  a  vanquished  enemy,  is 
wholly  unquestionable ;  but  it  would  be  difficult  to  maintain 
that  the  character  of  piracy  has  been  stamped  upon  such  a 
vessel  by  the  decision  of  international  law."  Kent  is  of  opinion 
that  the  law  of  the  United  States,  which  declares  such  an  act 
a  high  misdemeanor,  punishable  by  fine  and  imprisonment,  to 
be  "  in  affirmance  of  the  law  of  nations."  Ortolan  thinks  that 
such  an  act  is  not  piracy  in  international  law,  but  that  it  ought 
to  be  made  so.  Hautefeuille  is  of  opinion  that  they  are  not 
to  be  treated  as  pirates,  unless  made  so  by  interior  laws  or  treaty 
stipulations  of  the  neutral  state. 

§  16.  If  declared  pirates  by  treaty  or  local  law.  Many  states 
have  entered  into  treaties  stipulating  that  no  subject  or  citizen 
of  the  contracting  powers  shall  engage  in  privateering  against 
the  other,  under  pain  of  being  treated  as  a  pirate.  In  others  it 
is  made  piracy  by  municipal   law.     It  seems,  then,  whatever 

X 


178        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

may  be  thought  of  the  character  generally,  in  international  law, 
of  a  neutral  vessel  taking  a  commission  from  a  belligerent,  the 
other  belligerent  is  justified  in  treating  such  vessel  as  a  pirate, 
when  it  is  so  stipulated  by  treaty  with  the  neutral  state,  or  when 
the  laws  of  the  neutral  state  declare  such  acts  to  be  piracy. 

§  17.  Implements  of  war.  The  implements  of  war,  wliich 
may  be  lawfully  used  against  an  enemy,  are  not  confined  to 
those  which  are  openly  employed  to  take  human  life,  as  swords, 
lances,  fire-arms,  and  cannon ;  but  also  include  secret  and  con- 
cealed means  of  destruction,  as  pits,  mines,  etc.  So,  also,  of 
new  inventions  and  military  machinery  of  various  kinds ;  we 
are  not  only  justifiable  in  employing  them  against  the  enemy, 
but  also,  if  possible,  of  concealing  from  him  their  use.  The 
general  effect  of  such  inventions  and  improvements  is  thus 
described  by  a  distinguished  American  statesman :  "  Every 
great  discovery  in  the  art  of  war,  has  a  life-saving  and  peace- 
promoting  influence.  The  effects  of  the  invention  of  gun- 
powder are  a  familiar  proof  of  this  remark,  and  the  same  prin- 
ciple applies  to  the  discoveries  of  modern  times.  By  perfecting 
ourselves  in  military  science — paradoxical  as  it  may  seem — we 
are  therefore  assisting  in  the  diffusion  of  peace,  and  hastening 
the  approach  of  that  period  when  '  swords  shall  be  beaten  into 
ploughshares,  and  si>ears  into  pruning-hooks ;  when  nation 
shall  not  lift  up  sword  against  nation,  neither  shall  they 
learn  war  any  more.'^'  The  same  views  are  expressed  by 
Ortolan  and  other  recent  writers  on  the  laws  and  usasres  of  war. 
At  one  period,  however,  it  was  considered  contrary  to  the  rules 
of  military  honor  and  etiquette  to  make  use  of  unusual  imple- 
ments of  war.  Thus,  the  French  vice-admiral.  Marshal  Con- 
flans,  issued  an  order  of  the  day,  on  the  8th  of  November,  1759, 
forbidding  the  use  of  hollow  shot  against  the  enemy,  on  the 
ground  that  they  were  not  generally  employed  by  polite  nations, 
and  that  the  French  ought  to  fight  according  to  the  rules  of 
honor.  The  same  view  was  taken  of  the  use  of  hot  shot,  grape, 
chain-shot,  split  balls,  etc. 


CH.  XVL— MEANS  AND  INSTRUMENTS  OF  WAR.       179 

§  18.  Use  of  poisoned  weapons.  But  while  the  laws  of  war 
allow  the  use  of  new  inventions  of  arms,  or  other  means  of  de- 
struction, against  the  life  and  property  of  an  enemy,  there  is  a 
limit  to  this  rule  beyond  which  we  cannot  go.  It  is  necessity 
alone  that  justifies  us  in  making  war  and  in  taking  human  life, 
and  there  is  no  necessity  for  taking  the  life  of  an  enemy  who  is 
disabled,  or  for  inflicting  upon  him  injuries  which  in  no  way 
contribute  to  the  decision  of  the  contest.  Hence,  we  are  for- 
bidden to  use  poisoned  weapons,  for  these  add  to  the  cruelty 
and  calamities  of  a  war,  without  conducing  to  its  termination. 
We  may  wound  an  enemy  in  order  to  disable  him,  but,  when 
so  disabled,  we  have  no  right  to  take  his  life ;  we,  therefore, 
cannot  introduce  poison  into  the  wound  so  as,  subsequently, 
to  cause  his  death.  ^'  It  is,  therefore,  with  good  reason,^'  says 
Vattel,  "and  in  conformity  with  their  duty,  that  civilized 
nations  have  classed,  among  the  laws  of  war,  the  maxim  which 
prohibits  the  poisoning  of  arms.'^ 

§  19.  Poisoning  wells,  food,  etc.  The  practice  of  poisoning 
wells,  springs,  waters,  or  any  kind  of  food,  for  the  purpose  of 
injuring  an  enemy,  is  now  also  universally  condemned.  In 
addition  to  the  reasons  given  for  prohibiting  the  use  of  poisoned 
weapons,  there  is  the  additional  one,  that,  by  poisoning  waters 
and  food,  we  may  destroy  innocent  persons,  and  non-combatants. 
The  practice  is,  therefore,  condemned  by  all  civilized  nations, 
and  any  state  or  general  who  should  resort  to  such  means,  would 
be  regarded  as  an  enemy  to  the  human  race,  and  excluded  from 
civilized  society. 

§  20.  Assassination,  etc.  The  same  may  be  said  of  assassina- 
tion, or  treacherously  taking  the  life  of  an  enemy.  Not  unfre- 
quently  the  success  of  a  campaign,  or  even  the  termination  of 
the  war,  depends  upon  the  life  of  the  sovereign,  or  of  the  com- 
manding general.  Hence,  in  former  times,  it  sometimes  hap- 
pened that  a  resolute  person  was  induced  to  steal  into  the 
enemy's  camp,  under  the  cover  of  a  disguise,  and,  having  pene- 
trated to  the  general's  quarters,  to  surprise  and  kill  him.     Such 


180        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

an  act  is  now  deemed  infamous  and  execrable,  both  in  him  who 
executes,  and  in  him  who  commands,  encourages,  or  rewards  it. 
The  consuls,  Caius  Fabricius  and  Quintus  iEmilius,  rejected, 
with  horror,  the  proposal  of  Pyrrhus'  physician,  to  poison  his 
master,  and  cautioned  that  prince  to  be  on  his  guard  against  the 
traitor.  The  proposal  of  the  prince  of  the  Catti,  to  destroy 
Arminius,  was  rejected,  although  Arminius  had  treacherously 
cut  off  Varus,  together  with  three  Roman  legions,  both  the 
senate  and  Tiberius  deeming  it  unlawful  to  poison  even  a  per- 
fidious enemy.  It  was  on  the  same  principle  that  Alexander 
formed  his  judgment  of  Bessus,  who  had  assassinated  Darius. 
During  the  middle  ages,  however,  war  degenerated  into  cruelty 
and  barbarism,  and  poisons  and  assassinations  were  frequently 
resorted  to.  The  assassination  of  William,  Prince  of  Orange, 
by  the  Spaniards,  in  the  war  of  the  Netherlands,  is  now  regarded 
with  universal  detestation.  But  this  detestation  of  the  civilized 
world  is  not  confined  to  the  perpetrators  of  such  acts ;  those 
who  command,  encourage,  countenance,  or  reward  them,  are 
equally  execrated.  And  a  government,  or  a  general,  who 
should  neglect  to  punish  a  subject,  or  a  subordinate,  for  such  a 
crime,  would  be  justly  regarded  as  odious. 

§  21.  Surprises.  But  we  must  distinguish  between  a  treacher- 
ous murder  and  a  surprise,  which  is  always  allowable  in  war.  A 
small  force,  under  cover  of  the  night,  may  pass  the  enemy^s 
lines,  penetrate  to  his  headquarters,  surprise  the  general,  and 
take  him  prisoner,  or  attack  and  kill  him.  It  was  his  duty  to 
guard  against  such  attacks,  and  to  prevent  a  surprise.  Such 
acts  are,  therefore,  not  only  justifiable,  but  commendable ;  it  is 
the  disguise  and  treachery  which  gives  to  the  deed  the  character 
of  murder  or  assassination.  The  conduct  of  Leonidas  and  the 
Lacedsemonians,  who  broke  into  the  enemy's  camp,  and  made 
their  way  directly  to  the  Persian  monarch's  tent,  was  justified 
by  the  common  rules  of  war,  and  did  not  authorize  the  king  to 
treat  them  more  rigorously  than  any  other  enemies.  The  act 
of   Mutius  Scsevola,  in  entering  in  disguise,  the  tent  of  Por- 


CH.  XVL— MEANS  AND  INSTRUMENTS  OF  WAR.       181 

senna,  with  the  intention  of  killing  him,  was  praised  by  the  age 
in  which  he  lived,  but  would  not  be  justified  by  the  rules  of 
modern  warfare. 

§  22.  Allowable  deceptions.  War  makes  men  public  enemies, 
but  it  leaves  in  force  all  duties  which  are  not  necessarily  sus- 
pended by  the  new  position  in  which  men  are  placed  toward 
each  other.  Good  faith  is,  therefore,  as  essential  in  war  as  in 
peace,  for  without  it  hostilities  could  not  be  terminated  with  any 
degree  of  safety,  short  of  the  total  destruction  of  one  of  the 
contending  parties.  This  being  admitted  as  a  general  principle, 
the  question  arises,  how  far  we  may  deceive  an  enemy,  and  what 
stratagems  are  allowable  in  war?  Whenever  we  have  expressly 
or  tacitly  engaged  to  speak  truth  to  an  enemy,  it  would  be  per- 
fidy in  us  to  deceive  his  confidence  in  our  sincei  ity.  But  if  the 
occasion  imposes  upon  us  no  moral  obligation  to  disclose  to  him 
the  truth,  we  are  perfectly  justifiable  in  leading  him  into  error, 
either  by  words  or  actions.  Feints,  and  deceptions  of  this  kind 
are  always  allowable  in  war.  It  is  the  breach  of  good  faith, 
express  or  implied,  which  constitutes  the  perfidy,  and  gives  to 
such  acts  the  character  of  lies. 

§  23.  Stratagems,  what  allowed.  Stratagems,  in  war,  are 
snares  laid  for  an  enemy,  or  deceptions  practiced  on  him,  with- 
out perfidy,  and  consistent  with  good  faith.  They  are  not  only 
allowable,  but  have  often  constituted  a  great  share  of  the  glory 
of  the  most  celebrated  commanders.  "  Since  humanity  obliges 
us,"  says  Vattel,  "  to  prefer  the  gentlest  methods  in  the  prose- 
cution of  our  rights,  if,  by  a  stratagem,  by  a  feint  devoid  of  per- 
fidy, we  can  make  ourselves  masters  of  a  strong  place,  surprise 
the  enemy,  and  overcome  him,  it  is  much  better,  and  is  really 
more  commendable  to  succeed  in  this  way  than  by  a  bloody 
siege  or  the  carnage  of  a  battle.  Thus,  feints  and  pretended 
attacks  are  frequently  resorted  to,  and  men  or  ships  are  some- 
times so  disguised  as  to  deceive  the  enemy  as  to  their  real  char- 
acter, and,  by  this  means,  enter  a  place  or  obtain  a  position  ad- 
vantageous to  their  plan  of  attack  or  of  battle.     But  the  use  of 

16 


182        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

stratagems  is  limited  by  the  rights  of  humanity  and  the  estab- 
lished usages  of  war. 

§  24.  What  are  forbidden.  Vattel  mentions  the  case  of  an 
English  frigate,  which,  in  the  war  of  1756,  is  said  to  have  ap- 
peared oif  Calais,  and  made  signals  of  distress,  with  a  view  of 
decoying  out  some  vessel,  and  actually  seized  a  boat  and  some 
sailors  who  generously  came  to  her  assistance.  If  the  fact  be 
true,  that  unworthy  stratagem  deserves  a  severe  punishment.  It 
tends  to  damp  a  benevolent  charity  which  should  be  held  sacred 
in  the  eyes  of  mankind,  and  which  is  so  laudable  even  between 
enemies.  Moreover,  making  signals  of  distress  is  asking  assist- 
ance, and,  by  that  very  action,  promising  perfect  security  to 
those  who  give  the  friendly  succor.  Therefore  the  action  at- 
tributed to  that  frigate  implies  an  odious  perfidy."  Ortolan 
refers  to  the  conduct  of  an  English  frigate  and  two  vessels  at 
Barcelona,  in  1800,  as  of  the  same  character  as  that  of  the  Eng- 
lish frigate  off  Calais,  described  as  above,  by  Vattel.  In  that 
case  the  English  vessel  attacked  under  a  false  flag,  which  is  for- 
bidden by  the  laws  of  war.  To  sail  or  chase  under  false  colors 
is  an  allowable  stratagem,  and  some  say  that  what  is  called  the 
affirming  gun,  may  be  fired  under  false  colors ;  but  any  act  of 
real  hostility  must  be  under  the  flag  of  the  country  to  which  the 
vessel  belongs.  It  may  be  stated  in  general  terms  that  no 
stratagem  is  allowable  the  object  of  which  is  unlawful  as  a  bel- 
ligerent act,  or  where  the  means  of  its  execution  are  those  which 
a  belligerent  may  not  lawfully  use. 

§  25.  Deceitful  inteUigence.  Deceitful  intelligence  may  be  di- 
vided into  two  classes ;  false  representations  made  in  order  that 
they  may  fall  into  the  enemy's  hands  and  deceive  him,  and  the 
representations  of  one  who  feigns  to  betray  his  own  party,  with 
a  view  of  drawing  the  enemy  into  a  snare ;  both  are  justifiable 
by  the  laws  of  war.  Commanders  sometimes  make  false  repre- 
sentations of  the  number  and  position  of  their  troops,  and  of 
their  intended  military  operations,  for  the  purpose  of  having 
them  fall  into  the  enemy's  hands,  and  of  deceiving  him ;  this 


CH.  XVL— MEANS  AND  INSTRUMENTS    OF  WAR.      183 

is  not  only  allowable,  but  is  regarded  as  a  commendable  ruse  de 
la  guerre. 

§  26.  Use  of  spies.  Spies  are  persons  who,  in  disguise^  or 
under  false  pretenses,  insinuate  themselves  among  the  enemy,  in 
order  to  discover  the  state  of  his  aifairs,  to  pry  into  his  designs, 
and  then  communicate  to  their  employer  the  information  thus 
obtained.  The  employment  of  spies  is  considered  a  kind  of 
clandestine  practice,  a  deceit  in  war,  allowable  by  its  rulers. 
"  Spies,''  says  Vattel,  "  are  generally  condemned  to  capital  pun- 
ishment, and  not  unjustly ;  there  being  scarcely  any  other  way 
of  preventing  the  mischief  which  they  may  do.  For  this 
reason,  a  man  of  honor,  who  would  not  expose  himself  to  die 
by  the  hand  of  a  common  executioner,  ever  declines  serving  as 
a  spy.  He  considers  it  beneath  him,  as  it  seldom  can  be  done 
without  some  kind  of  treachery.  The  sovereign,  therefore,  can- 
not lawfully  require  such  a  service  of  subjects,  except,  perhaps, 
in  some  singular  case,  and  that  of  the  last  importance.  It 
remains  for  him  to  hold  out  the  temptation  of  a  reward,  as  an 
inducement  for  mercenary  souls  to  engage  in  the  business.  If 
those  whom  he  employs  make  a  voluntary  tender  of  their  ser- 
vices, or  if  they  be  neither  subject  to,  nor  in  anywise  connected 
with,  the  enemy,  he  may  unquestionably  take  advantage  of 
their  exertions,  without  any  violation  of  justice  or  honor."  No 
authority  can  require  of  a  subordinate  a  treacherous  or  criminal 
act  in  any  case,  nor  can  the  subordinate  be  justified  in  its  per- 
formance by  any  orders  of  his  superior.  Hence  the  odium  and 
punishment  of  the  crime  must  fall  upon  the  spy  himself, 
although  it  may  be  doubted  whether  the  employer  is  entirely 
free  from  the  moral  responsibility  of  holding  out  inducements  to 
treachery  and  crime.  That  a  general  may  profit  by  the  infor- 
mation of  a  spy,  the  same  as  he  may  accept  the  offers  of  a 
traitor,  there  can  be  no  question ;  but  to  seduce  the  one  to 
betray  his  country,  or  to  induce  the  other,  by  promises  of 
reward,  to  commit  an  act  of  treachery,  is  a  very  different  matter. 
The  term  spy  is  frequently  applied  to  persons  sent  to  reconnoitre 


184        INTERNATIONAL  LAW  AND  LAWS  OF  WAB. 

an  enemy's  position,  his  forces,  defenses,  etc.,  but  not  in  dis- 
guise, or  under  false  pretenses.  Such,  however,  are  not  spies  in 
the  sense  in  which  that  term  is  used  in  military  and  inter- 
national law,  nor  are  persons  so  employed  liable  to  any  more 
rigorous  treatment  than  ordinary  prisoners  of  war.  It  is  the 
disguise,  or  false  pretense  which  constitutes  the  perfidy,  and 
forms  the  essential  elements  of  the  offense,  which,  by  the  laws 
of  war,  is  punishable  with  an  ignominious  death. 

§  27.  Military  treachery,  perfidy,  etc.  It  may  be  stated,  in 
general  terms,  that  the  laws  of  war  forbid  the  employment  of 
any  means,  or  the  performance  of  any  act,  which  involves  mili-' 
tary  treachery,  or  perfidy,  or  infamy,  and  the  individuals  guilty 
of  such  military  offenses  are  almost  always  punished  with  death. 
Acts  which  are  allowable  in  themselves,  as  surprises  or  strata- 
gems, when  performed  or  attempted  by  means  of  perfidy,  are 
always  subject  to  the  severest  punishment. 


CHAPTER    Xyil. 

THE  ENEMY  AND  HIS  ALLIES. 

§1.  Difference  between  public  and  private  enemies.  TheEomans 
had  a  particular  term  {HostiSy)  to  denote  a  public  enemy,  and 
to  distinguish  him  from  a  private  enemy,  whom  they  called 
Inimicus.  The  distinction  is  a  marked  one,  and  should  never 
be  lost  sight  of.  Public  enemies  do  not  necessarily  have  any 
personal  hatred;  indeed  the  relation  of  public  belligerents  is 
not  inconsistent  with  the  strongest  private  and  personal  friend- 
ship. 

§  2.  Status  of  legal  hostility.  The  status  of  all  the  citizens 
and  subjects  of  the  hostile  state,  is  that  of  legal  hostility,  and 
their  character  of  public  enemies  continues  so  long  as  the  war 
lasts,  whatever  may  be  their  occupation,  and  in  whatever  coun- 
try they  may  be  found.  But  the  treatment  which  they  are 
entitled  to  receive  at  our  hands  varies  according  to  circum- 
stances. 

§  3.  Difference  of  treatment.  Thus  an  enemy's  subject  found 
in  our  own  territory  on  the  declaration  of  war  has  certain  rights 
in  regard  to  his  person  and  property,  not  permitted  to  him  if  a 
resident  in  his  own  country.  His  subjects  in  neutral  territory 
are  legal  enemies ;  but,  as  belligerents  are  not  permitted  to  use 
force  against  each  other  within  neutral  territory,  we  cannot 
exercise  there  the  same  rights  against  their  persons  and  property 
as  we  might  in  our  own  or  in  enemy's  territory,  or  on  the  high 
seas.  Moreover,  our  own  subjects,  resident  or  domiciled  in  the 
enemy's  country,  are,  in  certain  matters  relating  to  trade  and 

16*  Y  185 


186        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

the  rights  of  maritime  capture,  regarded  as  legal  enemies,  but 
not  with  respect  to  their  personal  status  and  personal  duties. 

§  4.  Allies  not  necessarily  associates  in  a  war.  It  has  already 
been  remarked,  that  we  have  the  same  rights  of  war  against  the 
co-allies  or  associates  of  an  enemy  as  against  the  principal 
belligerent.  It  must,  however,  be  observed  that  general  allies 
are  not  necessarily  associates  in  a  war.  The  allies  of  our  enemy, 
therefore,  may,  or  may  not,  themselves  become  our  enemies,  ac- 
cording to  the  character  of  the  alliance  which  they  have  formed 
with  that  enemy,  the  time  of  making  it,  and  the  circumstances 
under  which  it  was  entered  into.  We  must,  therefore,  dis- 
tinguish between  the  general  allies  of  an  enemy,  and  his  associ- 
ates in  a  war. 

§  5.  If  an  ally  of  the  enemy  engage  in  hostilities.  If  the  ally 
of  an  enemy  engage  in  hostilities  against  us,  his  subjects  and 
their  property  are  to  be  treated  in  the  same  manner  as  the  prin- 
cipal belligerent.  We  have  no  occasion  to  examine  into  the 
character  of  the  alliance,  nor  is  any  declaration  of  war  against 
the  ally  required. 

§  6.  Warlike  alliance  made  during  a  war.  Warlike  alliances, 
made  at  the  commencement  of,  or  during  a  war,  are  necessarily 
binding,  for  the  contracting  parties  then  know  the  character  of 
the  war  and  the  exact  nature  of  the  obligations  which  they  have 
assumed.  Alliances,  made  under  such  circumstances,  are  acts 
of  hostility  which  make  the  ally  an  enemy  equally  with  the 
principal  belligerent.  It  is  important,  however,  to  satisfy  our- 
selves as  to  the  character  of  such  alliances,  to  see  whether  or 
not  they  are  really  warlike  compacts  which  make  the  contracting 
parties  also  parties  to  the  war.  The  alliance  between  France 
and  the  English  revolted  colonies  in  North  America,  being  made 
during  the  war  of  the  American  revolution,  was  very  properly 
regarded  by  Great  Britain  as  tantamount  to  a  declaration  of 
war  on  the  part  of  France,  and  as  justifying  immediate  hostilities 
against  this  ally  of  the  revolted  colonies. 

§  7.  Warlike  alliance  made  before  a  war.    In  case  of  alliances, 


CH.  XVIL—THE  ENEMY  AND  HIS  ALLIES.  187 

made  before  the  war,  the  question  is,  to  determine  whether  the 
actual  circumstances  are  such  as  were  contemplated  in  the  en- 
gagement,— ^whether  they  are  such  as  were  expressly  specified,  or 
tacitly  supposed,  in  the  treaty.  This  is  what  the  civilians  call 
casiis  fcederis,  or  the  case  of  the  alliance.  Whatever  has  been 
promised,  either  expressly  or  tacitly,  in  the  treaty,  is  due  in  the 
casiis  foederis.  But  if  not  so  promised,  it  is  not  due.  If  the 
war  is  not  such  a  case  as  the  treaty  contemplated,  the  ally  does 
not  become  a  party  to  it ;  for  the  casus  foederis  does  not  take 
place. 

§  8.  An  offensive  alliance  made  before  a  war.  The  casus  foederis 
of  an  offensive  alliance  does  not  necessarily  take  place  as  soon  as 
war  is  declared  by  the  principal.  If  the  case  does  not  come 
within  the  conditions  of  the  alliance,  or  if  the  war  be  unjustly 
declared,  his  ally  is  not  bound  to  assist  our  enemy,  and  may 
claim  from  us  the  rights  of  neutrality. 

§  9.  A  defensive  alliance.  So,  also,  in  a  defensive  alliance  made 
before  the  war,  the  casm  foederis  does  not  take  place  immedi- 
ately on  one  of  the  parties  being  attacked  by  an  enemy.  The 
other  contracting  party  has  the  right,  as  indeed  it  is  his  duty,  to 
ascertain  if  his  ally  has  not  given  the  enemy  just  cause  of  war, 
for  no  one  is  bound  to  undertake  the  defense  of  an  ally,  in  order 
to  enable  him  to  insult  others,  or  to  refuse  them  justice.  If  he 
is  manifestly  in  the  wrong,  his  co-ally  may  require  him  to  oifer 
reasonable  satisfaction ;  and  if  the  enemy  refuse  to  accept  it,  and 
insists  upon  a  continuance  of  the  war,  the  co-ally  is  then  bound 
to  assist  in  his  defense.  But  without  such  offer  of  reasonable 
satisfaction,  the  war  continues  to  be  aggressive  in  character,  and 
therefore  unjust,  and  the  ally  may  properly  refuse  to  render  the 
promised  assistance,  for  the  tacit  condition  on  which  such  assist- 
ance was  stipulated  to  be  given,  has  not  been  observed,  or,  in 
other  words,  the  castes  foederis  has  not  taken  place. 

§  10.  Obligation  of  an  alliance  determined  by  justness  of  the 
war.  The  foregoing  rules  are  based  upon  the  principle,  says 
Yattel,  "that  there  is  a  tacit  clause  in  every  alliance  made  before 


188        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

a  war,  tJiat  the  treaty  sJiall  not  be  obligatory  except  in  case  of  a 
just  warP  But  the  presumption  is  in  favor  of  a  confederate, 
and  the  case  must  be  one  of  manifest  aggression  to  justify  an 
ally  in  refusing  to  comply  with  the  terms  of  his  engagement. 

§  11.  Treaties  of  subsidy  and  succor.  The  easm  foederis  of 
such  treaties  depends  upon  the  character  of  the  war,  the  same 
as  those  of  an  alliance  made  before  the  war.  Moreover,  where 
their  conditions  are  complied  with,  the  character  of  the  assist- 
ance afforded  to  our  enemy  may  be  such  that  we  may  not  deem 
it  necessary  to  treat  him  as  an  active  belligerent,  although  the 
auxiliaries  which  are  actually  furnished  would  be  regarded  as 
enemies. 

§  12.  Capitulations  for  mercenaries.  There  is  still  less  reason 
for  treating  as  an  enemy  a  state  which  has  furnished  mercenaries 
to  our  enemy  under  capitulations ,  like  those  formerly  entered 
into  by  the  Swiss.  Nevertheless  such  an  act  may  become  a  good 
cause  of  war. 

§  13.  Treaty  of  guarantee.  Treaties  of  guarantee  and  surety 
are  to  be  judged  of  in  the  same  manner  as  those  of  alliance. 
The  party  which  made  the  guarantee,  may  or  may  not  deem 
itself  bound  to  take  part  in  the  particular  war,  and  we  should, 
therefore,  not  be  hasty  in  treating  it  as  an  associate  of  our 
enemy. 

§  14.  Warlike  associates.  A  warlike  association  is  where  the 
alliance  or  engagement  is  of  such  an  intimate  and  perfect 
character  as  to  form  a  union  of  interests ;  where  each  of  the 
parties  is  bound  to  act  with  his  whole  force,  and  all  are  alike 
principals  in  the  war  at  its  commencement  or  become  so  during 
its  progress. 

§  15.  No  declaration  necessary  against  enemy's  associates.  As 
a  general  rule,  it  is  not  necessary  to  make  a  formal  declaration 
of  war  against  the  associates  of  the  enemy  before  treating  them 
as  belligerents.  The  nature  of  their  obligations,  or  the  character 
of  their  acts,  makes  them  public  enemies,  and  puts  them  in  the 
same  position  toward  us  as  if  they  were  principals  in  the  war. 


CH.  XVIL—THE  ENEMY  AND  HIS  ALLIES.  189 

Our  belligerent  rights  against  them  commence,  in  some  cases, 
with  the  war,  and,  in  others,  with  their  first  act  of  hostility 
against  us. 

§  16.  Policy  of  treating  enemy's  allies  as  friends.  But,  in 
modern  times,  there  are  very  few  alliances  between  states  which 
so  bind  them  together  as  necessarily  to  make  them  associates  in 
a  war ;  it  is,  therefore,  in  general,  a  matter  of  prudence  to  seek 
to  disarm  the  enemy's  allies  by  treating  them  as  friends.  It  is 
a  cheap  and  honorable  means  of  weakening  an  opponent's 
power,  and  may  save  the  effusion  of  much  innocent  blood.  The 
contrary  course  is  not  only  impolitic  on  our  part,  but  tends  to 
prolong  the  war  by  making  it  more  general,  and  by  involving 
new  elements  of  discord,  and  more  complicated  and  conflicting 
interests. 


CHAPTEE    XYIII. 

RIGHTS  OF  WAR  AS  TO  ENEMY'S  PERSON. 

§  1.  General  rights  as  to  enemy's  person.  It  has  already  been 
shown  that  war  places  all  the  subjects  of  one  belligerent  state  in 
a  hostile  attitude  toward  all  the  subjects  of  the  other  belligerent; 
and  although,  in  order  to  justify  us  at  the  tribunal  of  conscience, 
and  in  the  estimation  of  the  world,  it  is  necessary  that  we 
should  have  just  cause  of  war,  and  justifiable  reasons  for  under- 
taking it,  yet,  as  the  justness  or  unjustness  of  a  war  is  usually  a 
matter  of  controversy  between  the  contending  parties,  and  not  al- 
ways easy  to  be  determined,  it  has  become  an  established  prin- 
ciple of  international  jurisprudence  that  a  war  in  form  shall,  in 
its  legal  effects,  be  considered  as  just  on  both  sides,  and  that 
whatever  is  permitted  to  one  of  the  belligerents  shall  also  be 
permitted  to  the  other.  The  law  of  nations  makes  no  distinc- 
tion, in  this  respect,  between  a  just  and  an  unjust  war,  both  of 
the  belligerent  parties  being  entitled  to  all  the  rights  of  war  as 
against  the  other,  and  with  respect  to  neutrals.  Each  party  may 
employ  force,  not  only  to_  resist  the  violence  of  the  other,  but 
also  to  secure  the  objects  for  which  the  war  is  undertaken.  The 
first  and  most  important  of  these  rights,  which  the  state  of  war 
has  conferred  upon  the  belligerents,  is  that  of  taking  human 
life. 

§  2.  Limitation  of  right  to  take  life.  But  this  extreme  right 
of  war  with  respect  to  the  enemy's  person,  has  been  modified 
and  limited  by  the  usages  and  practices  of  modern  warfare. 
Thus,  while  we  may  lawfully  kill  those  who  are  actually  in 
arms  and  continue  to  resist,  we  may  not  take  the  lives  of  those 

190 


OH.  XVIIL—ENEMTS  PERSON.  191 

who  are  not  in  arms,  or  who,  being  in  arms,  cease  their  resist- 
ance and  surrender  themselves  into  our  power.  The  just  ends 
of  the  war  may  be  attained  by  making  them  our  prisoners,  or 
by  compelling  them  to  give  security  for  their  future  conduct. 
Force  and  severity  can  be  used  only  so  far  as  may  be  necessary 
to  accomplish  the  object  for  which  the  war  was  declared. 

§  3.  Exemption  of  non-combatants.  There  are  certain  persons 
in  every  state  who,  as  already  stated,  are  exempt  from  the  direct 
operations  of  war.  Feeble  old  men,  women  and  children,  and 
sick  persons  come  under  the  general  description  of  enemies,  and 
we  have  certain  rights  over  them  as  members  of  the  community 
with  which  we  are  at  war ;  but,  as  they  are  enemies  who  make 
no  resistance,  we  have  no  right  to  maltreat  their  persons,  or  to 
use  any  violence  toward  them,  much  less  to  take  their  lives. 
This,  says  Yattel,  is  so  plain  a  maxim  of  justice  and  humanity 
that  every  nation,  in  the  least  degree  civilized,  acquiesces  in  it. 
And  modern  practice  has  applied  the  same  rule  to  ministers  of 
religion,  to  men  of  science  and  letters,  to  professional  men, 
artists,  merchants,  mechanics,  agriculturists,  laborers — in  fine,  to 
all  non-combatants,  or  persons  who  take  no  part  in  the  war,  and 
make  no  resistance  to  our  arms. 

§  4.  Exemption  may  be  forfeited.  But  the  exemption  of  the 
enemy's  persons  from  the  extreme  rights  of  war  is  strictly  con- 
fined to  non-combatants,  or  such  as  refrain  from  all  acts  of  hos- 
tility. If  the  peasantry  and  common  people  of  a  •  country  use 
force,  or  commit  acts  in  violation  of  the  milder  rules  of  modern 
warfare,  they  subject  themselves  to  the  common  fate  of  military 
men,  and  sometimes  to  a  still  harsher  treatment.  And  if  min- 
isters of  religion,  and  females,  so  far  forget  their  profession  and 
sex  as  to  take  up  arms,  or  to  incite  others  to  do  so,  they  are  no 
longer  exempted  from  the  rights  of  war,  although  always  within 
the  rules  of  humanity,  honor  and  chivalry.  And  even  if  a 
portion  of  the  non-combatant  inhabitants  of  a  particular  place 
become  active  participants  in  hostile  operations,  the  entire  com- 
munity are  sometimes  subjected  to  the  more  rigid  rules  of  war. 


192        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

§  5.  Exceptions  to  mle  of  exemption.  Moreover,  in  some 
cases,  even  where  no  opposition  is  made  by  the  non-combatant 
inhabitants  of  a  particular  place,  tlie  exemption  properly  ex- 
tends no  further  than  to  the  sparing  of  their  lives ;  for,  if  the 
commander  of  the  belligerent  forces  has  good  reason  to  mistrust 
the  inhabitants  of  any  place,  he  has  a  right  to  disarm  them,  and 
to  require  security  for  their  good  conduct.  He  may  lawfully 
retain  them  as  prisoners,  either  with  a  view  to  prevent  them 
from  taking  up  arms,  or  for  the  purpose  of  weakening  the  en- 
emy. Even  women  and  children  may  be  held  in  confinement, 
if  circumstances  render  such  a  measure  necessary,  in  order  to  se- 
cure the  just  objects  of  the  war.  But  if  the  general,  without  reason, 
and  from  mere  caprice,  refuses  women  and  children  their  liberty, 
he  will  be  taxed  with  harshness  and  brutality,  and  will  be 
justly  censured  for  not  conforming  to  a  custom  established  by 
humanity.  When,  however,  he  has  good  and  sufficient  reasons 
for  disregarding  in  this  particular,  the  rules  of  politeness  and 
suggestions  of  pity,  he  may  do  so  without  being  justly  accused 
of  violating  the  laws  of  war. 

§  6.  Prisoners  entitled  to  quarter.  As  the  right  to  kill  an 
enemy  in  war,  is  applicable  only  to  such  public  enemies  as  make 
forcible  resistance,  this  right  necessarily  ceases  so  soon  as  the 
enemy  lays  down  his  arms  and  surrenders  his  person.  After 
such  surrender,  the  opposing  belligerent  has  no  power  over  his 
life,  unless  new  rights  are  given  by  some  new  attempt  at  resist- 
ance. "It  was  a  dreadful  error  of  antiquity,"  says  Yattel,  "a 
most  unjust  and  savage  claim,  to  assume  a  right  of  putting  a 
prisoner  of  war  to  death,  and  even  by  the  hand  of  the  execu- 
tioner." By  the  present  rules  of  international  law,  quarter  can 
be  refused  the  enemy  only  in  cases  where  those  asking  it  have 
forfeited  their  lives  by  some  crime  against  the  conqueror,  under 
the  laws  and  usages  of  war. 

§  7.  Made  slaves  in  ancient  times.  According  to  the  laws  of 
war,  as  practiced  by  some  of  the  nations  of  antiquity,  and  by 
savage  and  barbarous  nations  of  the  present  time,  prisoners  of 


CH.  XVIIL— ENEMY'S  PERSON,  198 

war  might  be  sold  to  private  individuals,  or  held  by  their  cap- 
tors as  slaves.  This  right  was  claimed  and  exercised  as  result- 
ing from  the  right  to  put  them  to  death,  and  was  deemed  a 
mitigation  of  the  extreme  right  of  war.  But  when  the  laws  of 
war  prohibited  the  captor  from  taking  the  lives  of  his  prison- 
ers, the  right  to  enslave  them  also  ceased.  It  is  now  claimed 
and  exercised  only  by  savages  and  barbarians. 

§  8.  Ransom  and  exchange.  The  ancient  practice,  of  putting 
prisoners  of  war  to  death,  or  selling  them  into  slavery,  gradu- 
ally gave  way  to  that  of  'ransoming,  which  continued  through  the 
feudal  wars  of  the  middle  ages.  By  a  cartel  of  March  12th, 
1780,  between  France  and  England,  the  ransom,  in  the  case  of 
a  field-marshal  of  France,  or  an  English  field-marshal,  or  cap- 
tain-general, was  fixed  at  sixty  pounds  sterling.  And  even  as 
late  as  the  treaty  of  Amiens,  in  1802,  between  Great  Britain 
and  the  French  and  Bavarian  Republics,  it  was  deemed  neces- 
sary to  stipulate  that  the  prisoners  on  both  sides  should  be  re- 
stored without  ransom.  The  present  usage  of  exchanging  pris- 
oners without  any  ransom,  was  early  introduced  among  the  more 
polished  nations,  and  was  pretty  firmly  established  in  Europe 
before  the  end  of  the  seventeenth  century. 

§  9.  No  positive  obligation  to  exchange.  But  this  usage  is  not, 
even  now,  considered  obligatory  upon  those  who  do  not  choose 
to  enter  into  a  cartel  for  that  purpose.  "  Whoever  makes  a  just 
war,^^  says  Yattel,  "  has  a  right,  if  he  thinks  proper,  to  detain 
his  prisoners  till  the  end  of  the  war."  *  *  *  "  If  a  nation  finds 
a  considerable  advantage  in  leaving  its  soldiers  prisoners  with 
the  enemy  during  the  war,  rather  than  exchange  them,  it  may 
certainly,  unless  bound  by  cartel,  act  as  is  most  agreeable  to  its 
interests.  This  would  be  the  case  of  a  state  abounding  in  men, 
and  at  war  with  a  nation  more  formidable  by  the  courage  than 
the  number  of  its  soldiers.  It  would  have  been  of  little  ad- 
vantage to  the  Czar,  Peter  the  Great,  to  restore  the  Swedes,  his 
prisoners,  for  an  equal  number  of  Russians." 

§  19.  Moral  obligations  of  the  state.  But  while  no  state  is 
17  z 


194        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

obliged,  by  the  positive  rules  of  international  law,  to  enter  intc 
a  cartel  for  the  exchange  of  prisoners  of  war,  there  is  a  strong 
moral  duty  imposed  upon  the  government  of  every  state  to  pro- 
vide for  the  release  of  such  of  its  citizens,  and  allies,  as  have 
fallen  into  the  hands  of  the  enemy.  They  have  fallen  into  this 
misfortune  only  by  acting  in  its  service,  and  in  the  support  of  its 
cause.  "  This,^^  says  Vattel,  "  is  a  care  which  the  state  owes  to 
those  who  have  exposed  themselves  in  her  defense." 

§  11.  Release  on  Parole.  Sometimes  prisoners  of  war  are 
permitted  to  resume  their  liberty,  upon  the  condition  or  pledge 
that  they  will  not  take  up  arms  against  their  captors  for  a 
limited  time,  or  during  the  continuance  of  the  war,  or  until 
they  are  duly  exchanged.  Such  pledges  are  called  military 
paroles ;  and  when  agreements  of  this  kind  are  made  within 
the  limits  of  the  powers,  specified  or  implied,  of  the  parties 
making  them,  they  are  binding  both  upon  the  individuals  and 
upon  the  state  to  which  they  belong.  But  there  are  certain 
limits  to  the  conditions  which  the  captor  may  impose,  and  to 
the  stipulations  or  pledges  which  the  prisoner  may  enter  into. 
For  example :  no  prisoner  can  enter  into  stipulations  inconsis- 
tent with  his  duties  to  his  state,  or  the  laws  of  his  government, 
or  the  orders  of  his  superiors ;  he  cannot  pledge  his  parole  not 
to  bear  arms  against  the  same  enemy  or  against  any  other  nation 
not  at  the  time  an  ally  of  his  captor ;  and  if  his  own  govern- 
ment has  specified  other  limits  to  the  obligations  he  may  con- 
tract, he  cannot  exceed  these  limits.  Moreover,  if  his  captors 
are  aware  of  such  limitations  at  the  time,  the  obligations  which 
they  impose  in  excess  of  his  authority  to  contract,  are  not 
binding. 

§  12.  United  States  Regulations  in  regard  to  paroles.  The 
United  States,  in  instructions  for  the  government  of  their 
armies  in  the  field,  (General  Orders  No.  100  for  1863,)  have 
laid  down  the  general  principles  relating  to  military  paroles, 
and  prescribed  particular  rules  and  limits  in  giving  such  paroles. 
And  any  obligations  entered  into  in  violation  of  these  rules, 


CH.  XVIIL— ENEMY'S  PERSON.  195 

unless  authorized  by  a  special  cartel,  duly  approved,  are  held  to 
be  null  and  void. 

§  13.  Duty  of  a  state  when  it  forbids  paroling.  Yattel  places 
the  duty  of  a  state  to  provide  for  the  support  of  its  subjects 
while  prisoners  of  war  in  the  hands  of  an  enemy,  upon  the  same 
grounds  as  its  duty  to  provide  for  their  ransom  or  release  by 
exchange.  Indeed,  a  neglect  or  refusal  to  do  so,  would  seem  to 
be  even  more  criminal  than  a  neglect  or  refusal  to  provide  for 
their  exchange ;  for  the  exigencies  of  the  war  may  make  it  the 
temporary  policy  of  the  state  to  decline  an  exchange,  but  nothing 
can  excuse  it  in  leaving  its  soldiers  to  suffer  in  an  enemy's 
country,  without  any  fault  of  their  own.  It  follows,  therefore, 
that  although  we  may  properly,  under  certain  circumstances, 
refuse  an  exchange,  we  cannot  neglect  to  make  proper  arrange- 
ments for  the  support  of  such  prisoners  as  the  enemy  is  willing 
to  exchange  on  fair  and  equitable  t^rms. 

§  14.  General  rule  for  support  of  prisoners.  As  there  is  usually 
no  great  disparity  of  numbers  of  prisoners  taken  by  the  oppos- 
ing belligerents  in  the  course  of  the  war,  it  is  the  modern  prac- 
tice for  each  captor  to  support  those  who  fall  into  their  hands 
till  an  exchange  can  be  effected.  The  burden  of  their  support 
is  thus  not  unequally  distributed  between  the  parties  to  the  war. 
Sometimes,  however,  so  very  large  a  number  is  taken  by  one 
party  as  to  leave  no  probability  of  an  immediate  exchange. 
The  captor  then  has,  no  alternative  but  to  support  his  prisoners 
himself,  or  to  release  them  on  parole.  But  if  there  has  been  an 
agreement  that  each  party  shall  provide  for  the  support  of  its 
prisoners  in  the  hands  of  the  other,  then  the  state  to  which  they 
belong  is  bound  to  provide  for  the  case  as  early  as  possible. 
Such  matters  are  usually  regulated  by  general  or  special  cartels, 
and  commissioners,  or  commissaries,  are  permitted  to  reside  in 
the  respective  belligerent  countries  to  provide  for  the  subsistence 
and  care  of  their  prisoners  of  war.  But  to  make  such  conven- 
tional arrangements  is  not  obligatory,  for  neither  party  is  bound 
to  receive  such  commissioners  or  commissarias  of  prisoners,  and, 


196        INTERNATIONAL    LAW  AND  LAWS  OF  WAR. 

in  case  of  rebellion  and  civil  war,  they  are  often,  for  good 
reasons,  refused. 

§  15.  Where  exchanges  cannot  be  effected.  It  not  unfrequently 
happens  in  war  that,  although  both  parties  are  willing  to  ex- 
change prisoners,  much  difficulty  and  delay  occur  in  agreeing 
upon  the  terms  of  the  cartel.  And  even  after  these  terms  have 
been  agreed  upon,  a  delay  necessarily  occurs  in  returning  the 
prisoners  to  their  own  country,  or  to  the  points  agreed  upon  for 
their  delivery.  In  all  such  cases,  as  well  as  where  no  exchange 
or  agreement,  in  regard  to  their  support,  has  been  made,  each 
captor  is  bound  to  provide  his  prisoners  with  the  necessaries  of 
life,  such  as  food,  clothing,  fuel,  etc.  He  cannot  allow  them  to 
suffer  or  starve.  Even  if  his  offer  to  exchange  has  been  refused, 
he  is  still  bound  to  treat  those  who  fall  into  his  hands  with 
humanity.  Under  ordinary  circumstances  prisoners  of  war  are 
not  required  to  labor  beyond  the  usual  police  duty  of  camp  and 
garrison ;  but,  where  their  own  state  refuses,  or  wilfully  neglects, 
to  provide  for  their  support,  it  is  not  unreasonable  in  the  captor 
to  require  them  to  pay  with  their  labor  for  the  supplies  which 
he  furnishes  them.  Where  one  of  the  belligerents  requires  such 
labor  from  his  prisoners  of  war,  the  other  is  always  justifiable 
in  doing  the  same.  The  modern  rules  of  war  do  not  forbid 
this;  but  no  degrading,  or  very  onerous  labor,  should  be 
imposed. 

§  16.  Character  of  support  to  be  given.  Where  circumstances 
render  it  obligatory  upon  the  captor  to  support  the  prisoners 
which  he  has  taken,  this  support  is  usually  limited  to  the  regu- 
lar provision  ration,  and  such  clothing  and  fuel  as  may  be  abso- 
lutely necessary  to  prevent  suffering.  Officers,  and  other  per- 
sons, who  have  the  means  of  paying  for  their  support,  cannot 
require  any  assistance  from  the  captor.  But  such  as  have  no 
money  are  certainly  entitled  to  an  allowance  sufficient  for  per- 
sonal comfort;  and  modern  custom,  and  military  usage,  require 
that  it  should  be  proportioned  to  the  rank,  dignity  and  character 
of  the  prisoner.     It,  however,  can  never  properly  be  required 


CH,  XVIIL—ENEMTS  PERSON.  197 

for  any  considerable  length  of  time,  as  prisoners  of  this  descrip- 
tion are  bound  to  provide  for  their  own  support  as  soon  as  they 
can  procure"  the  means  of  doing  so.  Moneys  and  valuables 
found  upon  the  persons,  or  in  the  baggage  of  prisoners  when 
captured,  may  be,  and  usually  are  applied  to  the  support  of 
themselves  and  their  comrades.  Watches,  and  articles  of  jew- 
elry, of  limited  value,  are  most  commonly  left  to  their  individual 
owners.  But  all  large  sums  are  legitimate  booty,  and  are  ap- 
propriated or  disposed  of  according  to  the  laws  of  the  capturing 
belligerent. 

§  17.  Cases  of  ill-treatment  and  starvation.  Although  the 
rules  of  international  law,  as  well  as  the  obligations  of  humanity, 
require  the  captor  to  either  release  his  prisoners  or  to  provide 
for  their  decent  and  proper  support,  there  have  been  recent  in- 
stances of  treatment  of  such  prisoners  which  w^ould  have  dis- 
graced the  most  barbarous  ages.  The  cruelty  of  the  Spaniards 
to  the  French  prisoners  confined  at  Cabrera,  and  of  the  rebel 
authorities  to  the  United  States  soldiers  confined  at  Richmond, 
Andersonville,  and  other  southern  prison-pens,  furnish  some  of 
the  darkest  pages  in  modern  history,  and  are  disgraceful  to  the 
perpetrators. 

§  18.  Where  the  captor  is  unable  to  support  Ms  prisoners. 
Sometimes  a  belligerent  captures  more  prisoners  than  he  can 
properly  support  for  any  considerable  length  of  time.  In  such 
cases  he  may  parole  them  so  that  they  may  earn  their  own  sup- 
port in  his  territory,  or  may  return  to  their  own  country,  under 
the  usual  obligations  attached  to  such  paroles.  Attempts  have 
sometimes  been  made  to  annul  such  engagements,  and  to  force 
released  prisoners  of  war  to  take  up  arms  in  the  same  campaign, 
in  direct  violation  of  their  parole.  Such  an  act,  on  the  part  of 
a  belligerent  government,  is  utterly  futile  as  a  protection  to 
soldiers  who  may  thus  violate  a  parole  legally  and  properly 
given.  We  have  an  example  in  the  war  between  the  United 
States,  and  Mexico,  which  General  Scott  promptly  met  by  re- 
taliatory measures. 

17  « 


198        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

§  19.  May  lie  kill  them  in  certain  cases?  But  suppose  a 
general  has  taken  so  large  a  number  of  prisoners  that  he  cannot 
guard  and  feed  them,  and  cannot  safely  release  them  on  parole, 
will  the  law  of  self-defense  justify  him  in  sacrificing  them  as 
Henry  V.  did  after  his  victory  at  Agincourt,  or  as  Admiral 
Anson  did  with  the  prisoners  taken  on  an  Acapulco  galleon  ? 

§  20.  This  forbidden  by  modem  law.  Vattel  seems  to  think 
that  there  may  be  extreme  cases  where  the  captor  is  justified  in 
destroying  his  prisoners.  Probably  this  opinion  was  justified 
by  the  practices  of  the  age  in  which  he  wrote,  and  of  those 
which  preceded  it,  but,  at  the  present  day,  the  conduct  of  any 
general  who  should  deliberately  put  to  death  unresisting  pri- 
soners, would  be  declared  infamous,  and  no  possible  excuse 
would  remove  the  stain  from  his  character. 

§  21.  Useless  defense  of  a  place.  It  was  an  ancient  maxim  of 
war,  that  a  weak  garrison  forfeit  all  claim  to  mercy  on  the  part 
of  the  conqueror,  when,  with  more  courage  than  prudence,  they 
obstinately  persevere  in  defending  an  ill-fortified  place  against 
a  large  army,  and  when,  refusing  to  accept  of  reasonable  con- 
ditions oifered  to  them,  they  undertake  to  arrest  the  progress  of 
a  power  which  they  are  unable  to  resist.  Pursuant  to  this 
maxim,  Csesar  answered  the  Aduatici  that  he  would  spare  their 
town  if  they  surrendered  before  the  battering-ram  touched  their 
walls.  But,  though  sometimes  practiced  in  modern  warfare,  it 
is  generally  condemned  as  contrary  to  humanity,  and  inconsist- 
ent with  the  principles  which,  among  civilized  and  Christian 
nations,  form  the  basis  of  the  laws  of  war. 

§  22.  Sacking  a  captnred  town.  We  do  not,  at  the  present 
day,  often  hear,  when  a  town  is  carried  by  assault,  that  the  gar- 
rison is  put  to  the  sword  in  cold  blood,  on  the  plea  that  they 
have  no  right  to  quarter.  Such  things  are  no  longer  approved 
or  countenanced  by  civilized  nations.  But  we  sometimes  hear 
of  a  captured  town  being  sacked,  and  the  houses  of  the  inhabi- 
tants being  plundered  on  the  plea  that  it  was  impossible  for  the 
general  to  restrain  his  soldiery  in  the  confusion  and  excitement 


CH.  XVIIL— ENEMY'S  PERSON.  199 

of  storming  the  place ;  and,  under  that  softer  name  of  plunder, 
it  has  sometimes  been  attempted  to  veil  "  all  crimes  which  man, 
in  his  worst  excesses,  can  commit;  horrors  so  atrocious  that 
their  very  atrocity  preserves  them  from  our  full  execration,  be- 
cause it  makes  it  impossible  to  describe  them." 

§  23.  Examples.  Many  terrible  atrocities  of  this  kind  were 
committed  in  the  war  of  the  Spanish  peninsula;  and  it  would 
be  difficult  to  find,  in  the  history  of  the  most  barbarous  ages, 
scenes  of  drunkenness,  lust,  rapine,  plunder,  cruelty,  murder 
and  ferocity,  equal  to  those  which  followed  the  captures  of  Ciu- 
dad  Rodrigo,  Badajos,  and  San  Sebastian.  These  were  at- 
tempted to  be  excused  on  the  ground  that  the  soldiers  could  not 
be  controlled.  But  this  was  no  valid  excuse.  An  officer  is 
generally  responsible  for  the  acts  of  those  under  his  orders.  Un- 
less he  can  control  his  soldiers,  he  is  unfit  to  command  them.  In 
the  same  way,  rebel  officers  were  responsible  for  the  murder  of 
our  captured  negro  troops,  whether  or  not  by  their  orders. 

§  24.  Fugitives  and  deserters.  Fugitives  and  deserters,  says 
Vattel,  found  by  the  victor  among  his  enemies,  are  guilty  of  a 
crime  against  him,  and  he  has  an  undoubted  right  to  punish 
them,  and  even  put  them  to  death.  They  are  not  properly  con- 
sidered as  military  enemies,  nor  can  they  claim  to  be  treated  as 
such :  they  are  perfidious  citizens,  who  have  committed  an  of- 
fense against  the  state,  and  their  enlistment  with  the  enemy 
cannot  obliterate  that  character,  nor  exempt  them  from  the  pun- 
ishment they  have  deserved.  They  are  not  protected  by  any 
compact  of  war,  as  a  truce,  capitulation,  cartel,  etc.,  unless  spe- 
cially and  particularly  mentioned  and  provided  for. 

§  25.  Rule  of  reciprocity.  In  the  operations  of  war,  a  bellig- 
erent not  unfrequently  adopts  the  rule  of  reciprocity ,  both  with 
respect  to  the  person  and  property  of  the  enemy.  There  cer- 
tainly is  equity  and  good  sense  in  the  rule  of  meting  out  to  au 
enemy  the  same  measure  of  justice  which  we  receive  from  him. 
Thus,  if  he  releases  his  prisoners  of  war  on  parole,  we  do  the 
same;  if  he  forces  his  prisoners  to  labor  for  their  support,  we 


200        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

do  the  same;  if  he  levies  heavy  contributions,  or,  exercising  the 
extreme  rights  of  war,  seizes  or  destroys  public  and  private  pro- 
perty, we  retaliate  by  measures  of  the  same  character. 

§  26.  Limitation  of  the  rule.  But  there  is  a  limit  to  this  rule 
of  reciprocity.  If  our  enemy  refuses  to  shape  his  conduct  by 
the  milder  usages  of  war,  and  adopts  the  extreme  and  rigorous 
principles  of  former  ages,  we  may  do  the  same;  but  if  he  ex- 
ceed these  extreme  rights,  and  become  barbarous  and  cruel  in 
his  conduct,  we  cannot,  as  a  general  rule,  retort  upon  his  sub- 
jects by  treating  them  in  like  manner.  We  cannot  exceed  the 
limits  which  humanity  has  prescribed  to  the  rights  of  belliger- 
ents. Suppose  our  enemy  should  use  poisoned  weapons,  or  poi- 
son the  food  and  water  which  we  use,  the  rule  of  reciprocity 
would  not  justify  us  in  resorting  to  the  same  measures.  Should 
he  massacre  or  starve  his  prisoners,  we  cannot  follow  his  ex- 
ample. A  savage  enemy  might  kill  alike  old  men,  women  and 
children ;  but  would  any  civilized  power  resort  to  similar  mea- 
sures of  cruelty  and  barbarism,  under  the  plea  that  they  were 
justified  by  the  law  of  retaliation?  And  yet  a  reckless  enemy 
sometimes  leaves  to  his  opponent  no  other  means  of  securing 
himself  against  the  repetition  of  barbarous  outrages.  While, 
therefore,  retaliation  cannot  be  entirely  dispensed  with  in  the 
operations  of  war,  it  should  be  used  only  as  a  means  of  pro- 
tective retribution,  and  never  as  a  measure  of  mere  revenge. 
Inconsiderate  and  extreme  retaliation  only  removes  the  bellig- 
erents further  and  further  from  the  rules  of  regular  warfare, 
and  gives  play  to  the  passions  of  a  savage  nature.  Wherever 
it  is  possible  to  punish  the  parties  offending,  severe  retaliation 
upon  innocent  persons  should  not  be  resorted  to. 

§  27.  Special  cases  where  quarter  may  be  refused.  In  the 
internecine  wars  of  former  ages,  when  the  killing  of  an  enemy 
was  regarded  as  the  object  of  the  war,  rather  than  as  the  means 
of  obtaining  peace,  it  Avas  frequently  resolved  to  give  no  quarter 
on  either  side.  This  is  opposed  to  modern  usage,  except  as  a 
measure  of  preventive  retaliation.     Troops  who  give  no  quarter, 


CH.  XVIIL— ENEMY'S  PERSON.  201 

are  not  entitled  to  receive  any.  The  same  rule  applies  to  those 
who  by  crimes  and  cruelties  make  themselves  military  outlaws. 
Enemies  who,  for  the  purpose  of  deceiving  in  battle,  fight  in 
our  uniform  without  any  manifest  mark  of  distinction,  or  under 
our  flag  or  other  emblem,  are  not  entitled  to  quarter.  By  such 
acts  of  military  perfidy,  they  forfeit  all  claims  to  protection 
under  the  laws  of  war,  even  Avhen  taken  as  prisoners.  They 
may  be  tried  and  punished  for  the  particular  offense,  or  be  sum- 
marily despatched  as  military  outlaws. 

§  28.  Disguise  and  perfidy.  Men,  or  squads  of  men,  who 
commit  hostilities,  whether  by  fighting,  or  by  raids  or  inroads 
for  the  destruction  and  plunder  of  public  or  private  property, 
without  commission,  pay,  or  regular  organization,  who  serve  in 
the  garb  of  citizens,  or  who,  at  intermitting  periods,  divest 
themselves  of  the  character  and  appearance  of  soldiers,  and, 
assuming  the  semblance  of  peaceful  pursuits,  return  to  their 
homes  and  avocations — such  men,  or  squads  of  men,  are  not 
public  enemies,  and,  therefore,  when  captured,  are  not  entitled  to 
the  treatment  of  prisoners  of  war,  but  may  be  treated  summarily 
as  highway  robbers  and  pirates.  Armed  prowlers,  by  whatever 
names  they  may  be  called,  who,  disguised  in  the  dress  of  the 
country  or  in  the  uniform  of  their  enemies,  are  found  within 
the  lines  of  the  army  hostile  to  their  own,  or  within  territory 
in  the  military  occupation  of  such  army,  for  the  purpose  of 
robbing  or  plunder,  or  of  destroying  bridges,  canals,  roads, 
telegraph  lines,  etc.,  are  not  entitled  to  the  privileges  of  prisoners 
of  war,  and  such  acts  of  perfidy  may  be  punished  with 
death. 

§  29.  War-rebels,  etc.  War-rebels,  or  war-traitors  as  they  are 
sometimes  called,  are  persons  within  an  occupied  territory  who 
rise  in  arms  against  the  occupying  or  conquering  power,  or  who 
convey  information  or  assistance  to  the  government  which  has 
been  expelled  from  such  territory.  It  will  be  shown  in  the 
chapter  on  military  occupation  that  the  inhabitants  of  territory 
so  occupied  owe  a  temporary  or  qualified  allegiance  to  the  con- 

2  A 


202        INTERNATIONAL   LAW  AND  LAWS  OF  WAB. 

queror  and  that  their  allegiance  to  the  former  government  is 
suspended  during  such  military  occupation.  In  return  for  the 
leniency  of  the  conqueror  in  not  expelling  them  from  the 
occupied  country,  they  are  bound  to  conform  to  his  authority 
and  to  render  no  aid  to  his  enemy.  If  they  take  up  arms  or 
conspire  against  his  authority,  whether  directed  to  do  so  or  not 
by  the  expelled  government,  their  punishment  is  death.  The 
same  penalty  attaches  if  they  convey  unauthorized  information 
or  assistance  to  the  army  or  authorities  of  the  expelled  belliger- 
ents ;  or  if  they  voluntarily  serve  as  guides,  or  offer  to  do  so,  to 
his  raids  or  forays  into  the  occupied  district.  No  person  forced 
by  an  enemy  to  serve  as  a  guide  is  punishable  for  having  done 
so ;  but  if  he  intentionally  give  false  information,  he  may  be 
put  to  death  for  his  treachery. 

A  messenger  captured  in  territory  militarily  occupied,  while 
carrying  written  despatches  or  verbal  messages  from  the  expelled 
belligerent,  may  or  may  not  be  punishable ;  if  armed  and  in  the 
uniform  of  his  army,  he  is  to  be  treated  by  the  captor  as  a 
prisoner  of  war ;  if  not  in  uniform,  nor  a  soldier,  and  is  attempt- 
ing to  steal  through  the  occupied  territory  to  further  the  inter- 
ests of  the  enemy,  he  will  be  punished  as  a  spy,  or  otherwise, 
according  to  the  circumstances  of  the  case. 

Foreign  residents  in  an  invaded  or  occupied  territory,  or 
foreign  visitors  in  the  same,  can  claim  no  immunity  from  the 
laws  of  war,  on  account  of  their  foreign  character.  If  they 
communicate  with  or  assist  the  enemy,  they  may  be  expelled 
from  the  occupied  territory,  or  suffer  such  other  punishment  as 
the  circumstances  of  the  case  may  require. 

§  30.  Limitation  as  to  time  of  punishing  military  offenses. 
There  is  a  law  of  limitation  applicable  to  the  punishment  of 
military  offenses  which  resembles  in  a  manner  that  which 
applies  to  crimes  at  the  civil  law.  The  criminality  of  some 
military  offenses  ceases  with  the  completion  of  the  act  and  the 
return  of  the  perpetrator  to  the  jurisdiction  of  the  opposing  bel- 
ligerent, while  others  are  punishable  at  any  and  all  times,  at 


CH.  XVIIL-^ENEMY'S  PERSON.  203 

least  so  long  as  the  war  continues.  To  the  latter  class  belong 
those  offenses  which  are  assimilated  to  capital  crimes  at  the  civil 
law,  such  as  military  surrenders  and  assassinations,  poisonings, 
inhuman  treatment  of  prisoners,  acts  of  military  perfidy.  For 
example,  the  taking  of  life  by  guerrilla  bands,  or  other  unau- 
thorized belligerents,  is  a  military  murder,  which  is  as  subversive 
of  civilized  society  as  a  murder  in  time  of  peace.  Hence  the 
crime  is  considered  to  adhere  to  the  actor,  and  the  penalty  con- 
tinues to  attach  to  the  offense.  On  the  other  hand  the  act  of 
spying  is  an  offense  only  under  the  laws  and  usages  of  war ;  it 
is  no  crime  against  society  in  time  of  peace.  Hence  a  success- 
ful spy,  safely  returned  to  his  own  army,  and  afterward  cap- 
tured as  an  enemy,  is  not  subject  to  punishment  for  his  acts  as  a 
spy :  he  is  entitled  to  be  treated  as  a  prisoner  of  war,  but  he 
may  be  subjected  to  restraint  and  held  in  close  custody  as  a 
person  individually  dangerous.  On  this  subject  Saalfeld  re- 
marks :  "  The  spy  himself,  except  a  subject  who  serves  as  a  spy 
against  his  own  sovereign,  is  not  guilty  of  any  crime  in  the  sense 
that  term  is  used  in  the  law  of  nations,  and  although  military 
usages  (raison  de  guerre)  universally  permit  the  execution  of  a 
spy,  nevertheless  this  procedure  is  not  to  be  considered  as  a 
punishment,  but  simply  as  a  means  of  prevention,  (or  of  deter- 
ring persons  from  the  commission  of  the  act  of  spying ;)  this 
also  serves  as  a  reason  why  he  who  has  ceased  to  be  a  spy  cannot 
be  executed.  The  severe  treatment  of  the  spy  is  permitted  by 
international  law  only  against  him  who  is  caught  in  the  act ;  but 
if  the  spy  has  committed,  at  the  same  time,  a  crime  at  interna- 
tional law,  he  may  at  any  time  be  punished  for  this  particular 


CHAPTER    XIX. 

ENEMY'S  PROPERTY  ON   LAND. 

§  1.  General  right  of  capture  modified  by  usage.  War  gives 
to  one  belligerent  the  right  to  deprive  the  other  of  everything 
which  might  add  to  his  strength,  and  enable  him  to  carry  on 
hostilities.  But  this  general  right  is  subject  to  numerous  modi- 
fications and  limitations  which  have  been  introduced  by  custom 
and  the  positive  law  of  nations.  Thus,  although,  by  the  ex- 
treme right  of  war,  all  property  of  an  enemy  is  deemed  hostile 
and  subject  to  seizure,  it  by  no  means  follows  that  all  such 
property  is  subject  to  appropriation  or  condemnation,  for  the 
positive  law  of  nations  distinguishes  not  only  between  the 
property  of  the  state  and  that  of  its  individual  subjects,  but 
also  between  that  of  different  classes  of  subjects,  and  between 
different  kinds  of  property  of  the  same  subject ;  and  particular 
rules,  derived  from  usage  and  the  practice  of  nations,  have  been 
established  with  respect  to  each. 

§  2.  Rules  different  for  different  kinds  of  property.  Not  only 
are  the  rules  different  in  regard  to  the  right  of  capture  of  dif- 
ferent kinds  of  property,  but  also  in  regard  to  the  kind  of  title 
acquired,  and  to  the  manner  of  its  acquisition. 

§  3.  Distinction  between  movables  and  immovables.  Some 
have  asserted  that  the  right  of  a  belligerent  to  the  property  of 
an  enemy,  should  be  limited  to  movables,  or  such  things  as 
may  be  conveyed  or  carried  away.  It  is  argued  that  war  being 
but  a  temporary  relation  of  nations,  their  practices  during  such 
a  condition  of  things  should  be  regulated  and  limited  by  the 
temporary  character  of  that   relation;    that,  as  real   property 

204 


CH.  XIX.— ENEMY'S  PROPERTY  ON  LAND.  205 

must  remain  after  the  termination  of  the  war,  and  may  revert 
to  its  former  owner  by  the  jus  postliminii,  it  can  properly  never 
be  alienated  by  the  conqueror  so  long  as  the  war  continues. 
The  force  of  this  argument  is  not  readily  perceived.  The  neces- 
sity of  self-preservation,  and  the  right  to  punish  an  enemy,  and 
to  deprive  him  of  the  means  of  injuring  us,  by  converting  those 
means  to  our  own  use  against  him,  lie  at  the  foundation  of  the 
rule,  and  constitute  the  right  of  a  belligerent  to  enemy's  pro- 
perty of  any  kind ;  and  it  is  difficult  to  see  why  this  right 
should  be  restricted  to  a  particular  species  of  property — to  cattle, 
horses,  money,  ships,  goods — and  not  include  lands  or  immov- 
ables. We  think,  therefore,  that  by  the  just  rules  of  war,  the 
conqueiior  has  the  same  right  to  use  or  alienate  the  public 
domain  of  the  conquered  or  displaced  government,  as  he  has  to 
use  or  alienate  its  movable  property.  This  principle,  we 
believe  to  be  recognized  and  sustained  by  the  general  law  of 
nations. 

§  4.  Title  to  real  property.  It  must  not,  however,  be  inferred 
that  the  title  which  the  purchaser  acquires  to  the  two  species  of 
property  is  the  same.  On  the  contrary,  it  is  essentially  different. 
The  purchaser  of  movable  property  captured  on  land,  acquires 
a  perfect  title  as  soon  as  the  property  is  in  the  firm  possession 
of  the  captor ;  and  the  title  to  a  maritime  capture  is  complete 
when  carried  infra  prcesidia,  or  at  least  after  the  sentence  of  a 
competent  court  of  prize.  But  the  purchase  of  any  portion  of 
the  national  domain  of  a  conquered  country,  takes  it  at  the  risk 
of  being  evicted  by  the  original  sovereign  owner,  if  he  should 
be  restored  to  the  possession  of  his  dominions.  But  if  such 
restoration  should  not  take  place,  and  the  title  of  the  con- 
queror should  be  confirmed  by  some  one  of  the  modes  recog- 
nized by  international  law,  the  title  of  the  purchaser  is  then 
made  perfect. 

§  5.  Who  may  purchase.     A  question  here  arises  as  to  wlio 
may  become  the  purchasers  of  immovable  property  alienated  by 
the  conqueror  during  military  occupation,  and  prior  to  the  con- 
18 


206        INTERNATIONAL  LAW  AND  LAWS  OF  WAB. 

firmation  of  the  conquest.  The  object  of  such  alienation  is,  as 
already  stated,  to  weaken  the  enemy  and  to  supply  ourselves 
with  the  means  of  carrying  on  the  war.  It  is  evident,  there- 
fore, that  the  subjects  of  the  conquered  or  displaced  government 
cannot,  consistently  with  their  duties  to  their  own  sovereign, 
become  such  purchasers.  If  however,  they  are  inhabitants  of 
the  conquered  territory,  and  their  allegiance  should  be  trans- 
ferred to  the  new  government  by  the  confirmation  of  the  con- 
quest, their  title  would  thereby  be  made  valid,  and  they  them- 
selves be  freed  from  the  risk  of  punishment  for  having  paid  the 
purchase  money.  Subjects  of  the  conqueror  may  become  pur- 
chasers with  no  other  risk  than  that  of  being  evicted  by  the 
original  owner  on  the  restoration  or  recapture  of  the  real  pro- 
perty so  alienated.  The  same  may  be  said  of  foreigners,  or  the 
subjects  of  a  neutral  state. 

§  6.  Purchase  by  a  neutral  state.  Whether  a  neutral  power 
may  make  such  purchases  and  not  become  a  party  to  the  war, 
will  depend  upon  the  character  of  the  assistance  which,  by  the 
purchase,  is  afforded  to  the  conqueror,  to  the  injury  of  the  op- 
posing belligerent.  It  is  certain  that  if  he  should  attempt  to 
possess  himself,  during  the  continuance  of  the  war,  of  the  lands 
so  purchased,  or  to  maintain  the  title  so  acquired,  after  the  res- 
toration or  recapture  of  the  property  so  alienated,  he  would 
assume  a  hostile  attitude  toward  the  original  sovereign  owner 
and  make  himself  a  party  to  the  war. 

§  7.  Movables.  All  implements  of  war,  military  and  naval 
stores,  and  in  general,  all  movable  property  on  land,  belonging 
to  the  hostile  state,  is  subject  to  be  seized  and  appropriated  to 
the  use  of  the  captor.  And  the  title  to  such  personal  or  mov- 
able property  is  considered  as  lost  to  the  original  proprietor,  as 
soon  as  the  captor  has  acquired  a  firm  possession ;  which,  as  a 
general  rule,  is  considered  as  taking  place  after  the  lapse  of 
twenty-four  hours ;  so  that,  immediately  after  the  expiration  of 
that  time,  it  may  be  alienated  to  neutrals  as  indefeasible  pro- 
perty. 


CB.  XIX.— ENEMY'S  PROPERTY  ON  LAND.  207 

§  8.  Documentary  evidence  of  debts.  We  have  discussed  in  a 
former  chapter  the  right  of  a  belligerent  state  to  confiscate,  on 
the  declaration  of  war,  debts  owing  by  its  government,  or  by  its 
subjects,  to  subjects  of  the  enemy.  We  will  now  consider  the 
right  to  capture  them  as  the  property  of  the  enemy,  found  in 
hostile  territory,  by  capturing  the  documents  which  constitute 
the  evidence  of  such  debts.  It  will  be  obsepved  that  this  ques- 
tion is  entirely  distinct  from  the  right  to  confiscate  a  debt,  ipso 
facto  J  by  the  declaration  of  war.  We  have  an  example  from 
classical  history.  When  Alexander  took  the  city  of  Thebes,  he 
found  an  instrument  by  which  it  was  shown  that  the  Thessa- 
lians,  who  served  with  him,  owed  the  Thebans  an  hundred 
talents.  This  instrument  he  gave  to  the  Thessalians  as  a  can- 
cellation of  their  debt.  On  the  restoration  of  the  Thebans,  they 
demanded  the  payment  of  the  debt  as  still  due  and  owing  them. 
The  case  was  referred  to  the  Amphictyonic  council,  and  their 
decision  is  understood  to  have  been  in  favor  of  the  Thessalians. 
Jurists  have  generally  sustained  the  supposed  decision  of  the 
Amphictyons,  on  the  ground  of  the  complete  conquest  of 
Thebes,  and  that  Alexander  became  the  universal  successor  of 
the  conquered  state,  but  not  on  the  ground  of  the  mere  capture 
of  the  documentary  evidence  of  the  debt.  The  instruments 
cannot  be  regarded  as  the  debt,  because  a  creditor  may  recover 
his  debt,  though  the  instruments  be  lost  or  destroyed ;  they  are 
the  means,  but  not  the  only  means  of  proving  that  it  exists. 
It  is,  therefore,  held  that  the  mere  fact  of  the  conqueror  pos- 
sessing himself  of  the  documents,  relating  to  incorporeal  rights, 
does  not  give  to  him  the  possession  of  the  rights  themselves ; 
and  as  his  rights,  as  derived  from  military  force,  are  simply 
those  of  possession,  it  is  not  competent  for  him  to  bestow  upon, 
or  transfer  to  another,  what  he  cannot  physically  take  possession 
of  himself. 

§  9.  Public  archives,  etc.  There  is  one  species  of  movable 
property  belonging  to  a  belligerent  state  which  is  exempt,  not 
only  from  plunder  and  destruction,  but  also  from  capture  and 


208        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

conversion,  viz. :  state  papers,  public  archives,  historical  records, 
judicial  and  legal  documents,  land  titles,  etc.,  etc.  While  the 
enemy  is  in  possession  of  a  town  or  province,  he  has  a  right  to 
hold  such  papers  and  records,  aiid  to  use  them  in  regulating  the 
government  of  his  conquest ;  but  if  this  conquest  is  recovered 
by  the  original  owner  during  the  war,  or  surrendered  to  him  by 
the  treaty  of  peace,  they  should  be  returned  to  the  authorities 
from  whom  they  were  taken,  or  to  their  successors.  Such  docu- 
ments adhere  to  the  government  of  the  place  or  territory  to 
which  they  belong,  and  should  always  be  transferred  with  it. 
None  but  a  barbarous  and  uncivilized  enemy  would  ever  think 
of  destroying  or  withholding  them. 

§  10.  Works  of  art,  etc.  Some  have  contended  that  the  same 
rule  applies  to  public  libraries  and  to  all  monuments  of  art  and 
models  of  taste.  But  there  is  an  obvious  distinction  in  the  two 
cases.  No  belligerent  would  be  justifiable  in  destroying  tem- 
ples, tombs,  statues,  paintings,  or  other  works  of  art,  (except 
so  far  as  their  destruction  may  be  the  accidental  or  necessary  result 
of  military  operations.)  But,  may  he  not  seize  and  appropriate 
to  his  own  use  such  works  of  genius  and  taste  as  belong  to  the 
hostile  state,  and  are  of  a  movable  character  ?  On  this  ques- 
tion there  has  been  some  difference  of  opinion,  but  the  weight 
of  authority  is  that  mere  works  of  art  and  taste  are  subject  to 
capture,  and  that  the  captor  may  remove  them,  if  he  can  do  so 
without  injury,  their  ultimate  ownership  to  be  settled  by  the  en- 
suing treaty  of  peace.  But  from  this  rule  we  would  except  the 
property  of  churches,  hospitals,  or  other  establishments  exclu- 
sively religious  or  charitable,  and  of  schools,  academies,  col- 
leges, and  other  establishments  of  education  and  learning.  But 
such  property  may  be  taxed  or  used  when  the  public  service 
requires  it. 

§  11.  Civil  structures  and  monuments.  But  whatever  distinc- 
tion may  be  drawn  in  regard  to  the  capture  of  works  of  art  and 
taste,  of  libraries,  cabinets,  philosophical  instruments,  belonging 
to  the  hostile  state,  such  works  cannot  be  wantonly  or  unneces- 


CH.  XIX.— ENEMY'S  PROPERTY  ON  LAND.  209 

sarily  destroyed.  The  same  rule  applies  to  all  structures  of  a 
civil  cliaracter,  to  all  public  edifices  devoted  to  civil  purposes, 
to  temples  of  religion,  monuments  of  art,  etc.  But  if  such 
structures  be  devoted  to  military  purposes,  as  military  store- 
houses, magazines,  works  of  defense,  etc.,  they  are  liable  to  be 
destroyed. 

§  12.  Private  property  on  land.  Private  property  on  land,  is 
now,  as  a  general  rule  of  war,  exempt  from  seizure  or  confisca- 
tion ;  and  this  general  exemption  extends  even  to  cases  of  abso- 
lute and  unqualified  conquest.  Even  where  the  conquest  of  a 
country  is  confirmed  by  the  unconditional  relinquishment  of 
sovereignty  by  the  former  owner,  there  can  be  no  general  or 
partial  transmutation  of  private  property,  in  virtue  of  any 
rights  of  conquest.  That  which  belonged  to  the  government 
of  the  vanquished,  passes  to  the  victorious  state,  which  also 
takes  the  place  of  the  former  sovereign,  in  respect  to  the  right 
of  eminent  domain;  but  private  rights,  and  private  property, 
both  movable  and  immovable,  are,  in  general,  unaffected  by  the 
operations  of  a  war,  whether  such  operations  be  limited  to  mere 
military  occupation,  or  extend  to  complete  conquest. 

§  13.  General  exceptions  to  rule  of  exemption.  But  it  must 
also  be  remembered  that  there  are  many  exceptions  to  this  rule, 
or  rather,  that  the  rule  itself  is  not,  by  any  means,  absolute  or 
universal.  The  general  theory  of  war  is,  as  heretofore  stated, 
that  all  private  property  may  be  taken  by  the  conqueror,  and 
such  was  the  ancient  practice.  But  the  modern  usage  is,  not  to 
touch  private  property  on  land,  without  making  compensation, 
except  in  certain  specified  cases.  These  exceptions  may  be 
stated  under  four  general  heads :  1st,  confiscations  or  seizures 
by  way  of  penalty  for  military  oifenses;  2d,  forced  contribu- 
tions for  the  support  of  the  invading  armies,  or  as  an  indemnity 
for  the  expenses  of  maintaining  order,  and  affording  protection 
to  the  conquered  inhabitants;  and  3d,  property  taken  on  the 
field  of  battle,  or  in  storming  a  fortress  or  town;  and  4th,  where 

18*  2B 


210        INTERNATIONAL    LAW  AND  LAWS  OF  WAR. 

the  mass  of  the  people  take  up  arms,  and  the  entire  population 
engage  in  hostilities. 

§  14.  Penalty  for  military  offenses.  In  the  first  place,  we  may 
seize  upon  private  property,  by  way  of  penalty  for  the  illegal 
acts  of  individuals,  or  of  the  community  to  which  they  belong. 
Thus,  if  an  individual  be  guilty  of  conduct  in  violation  of  the 
laws  of  war,  we  may  seize  and  confiscate  the  private  property 
of  the  offender.  So  also,  if  the  offense  attach  itself  to  a  par- 
ticular community  or  town,  all  the  individuals  of  that  commu- 
nity or  town  are  liable  to  punishment,  and  we  may  either  seize 
upon  their  property,  or  levy  upon  them  a  retaliatory  contribu- 
tion, by  way  of  penalty.  Where,  however,  we  can  discover  and 
secure  the  individuals  so  offending,  it  is  more  just  to  inflict  the 
punishment  upon  them  only ;  but  it  is  a  general  law  of  war, 
that  communities  are  accountable  for  the  acts  of  their  individual 
members.  This  makes  it  the  interest  of  all  to  discover  the 
guilty  persons,  and  to  deliver  them  up  to  justice.  But  if  these 
individuals  are  not  given  up,  or  cannot  be  discovered,  it  is  usual 
to  impose  a  contribution  upon  the  civil  authorities  of  the  place 
where  the  offense  is  committed,  and  these  authorities  raise  the 
amount  of  the  contribution  by  a  tax  levied  upon  their  con- 
stituents. 

§  15.  Military  contributions.  In  the  second  place  we  have  a 
right  to  make  the  enemy's  country  contribute  to  the  expenses 
of  the  war.  Troops,  in  the  enemy's  country,  may  be  subsisted 
either  by  regular  magazines,  by  forced  requisitions,  or  by  au- 
thorized pillage.  It  is  not  always  politic,  or  even  possible,  to 
provide  regular  magazines  for  the  entire  supplies  of  an  army 
during  the  active  operations  of  a  campaign.  Where  this  can- 
not be  done,  the  general  is  obliged  either  to  resort  to  military 
requisitions,  or  to  entrust  their  subsistence  to  the  troops  them- 
selves. The  inevitable  consequences  of  the  latter  system  are 
universal  pillage,  and  a  total  relaxation  of  discipline  ;  the  loss 
of  private  property,  and  the  violation  of  individual  rights,  are 
usually  followed  by  the  massacre  of  straggling  parties,  and  the 


CH.  XIX.— ENEMY'S  PROPERTY  ON  LAND.  211 

ordinary  peaceful  and  non-combatant  inhabitants  are  con- 
verted into  bitter  and  implacable  enemies.  The  system, 
is  therefore, ,  regarded  as  both  impolitic  and  unjust,  and  is 
coming  into  general  disuse  among  the  most  civilized  nations, 
— at  least  for  the  support  of  the  main  army.  In  case 
of  small  detachments,  where  great  rapidity  of  motion  is 
requisite,  it  sometimes  becomes  necessary  for  the  troops  to 
procure  their  subsistence  wherever  they  can.  In  such  a 
case  the  seizure  of  private  property  becomes  a  necessary 
consequence  of  the  military  operations,  and  is,  therefore, 
unavoidable.  Other  cases,  of  similar  character,  might  be 
mentioned. 

§  16.  Of  hostile  populations.  Sometimes  the  people  of  a 
country,  or  particular  district,  devote  themselves  and  property 
to  belligerent  purposes  ;  and  sometimes  their  own  government, 
by  conscriptions  and  forced  contributions,  bring  all  private  per- 
sons within  the  list  of  combatants,  and  make  all  private  pro- 
perty virtually  government  property,  and  therefore  hostile. 
Unquestionably  all  private  property  so  used,  or  liable  to  be  so 
used,  for  hostile  purposes,  is  subject  to  capture  and  confiscation. 
The  same  principle  applies  to  cases  of  civil  war  or  rebellion, 
where  a  class  or  portion  of  the  people  take  up  arms  against  the 
legal  authority  of  their  government.  Such  wars  are  usually  con- 
fined to  a  particular  section  of  country,  the  entire  population  of 
which  is  in  insurrection  or  rebellion.  And  where  a  whole 
community  become  combatants,  the  private  property  of  its 
individual  members  becomes  hostile,  and  is  liable  to  capture 
and  confiscation.  The  reason  for  the  exemption  of  private  pro- 
perty on  land  from  confiscation  in  ordinary  international  w^ars 
is  that  most  of  the  individual  members  of  the  belligerent  states 
take  no  active  part  in  the  war,  and  are  therefore  enemies  only  in 
the  legal  sense  of  that  word.  Where  the  reason  for  the  exemp- 
tion does  not  exist,  the  exemption  itself  cannot  be  claimed. 

§  17.  Captures  on  the  battle  field.     In  the  third  place,  private 


212        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

property  taken  from  the  enemy  on  the  field  of  battle,  in  the 
operations  of  a  siege,  or  in  the  storming  of  a  place  which  refuses 
to  capitulate,  is  usually  regarded  as  legitimate  spoils  of  war. 
The  right  to  private  property,  taken  in  such  cases,  must  be  dis- 
tinguished from  the  right  to  permit  the  unrestricted  sacking  of 
private  houses,  the  promiscuous  pillage  of  private  property,  and 
the  murder  of  unresisting  inhabitants,  incident  to  the  authorized 
or  permitted  sacking  of  a  town  taken  by  storm,  as  described  in 
the  preceding  chapter.  In  other  words,  we  must  distinguish 
between  the  title  to  property  acquired  by  the  laws  of  war,  and 
the  accidental  circumstances  accompanying  the  acquisition. 
Thus,  the  right  of  prize  in  maritime  captures,  and  of  land  in 
conquests,  may  be  good  and  valid  titles,  although  such  acquisi- 
tions are  sometimes  attended  with  cruelty  and  outrage  on  the 
part  of  the  captors  and  conquerors.  So  with  respect  to  the  right 
of  booty  acquired  in  battle  or  assault ;  the  acquisition  may  be 
valid  by  the  laws  of  war,  although  other  laws  of  the  same  code 
may  have  been  violated  by  the  general  or  his  soldiers  in  the 
operations  of  the  campaign  or  siege. 

§  18.  Useless  destruction  of  enemy's  property.  While  there  is 
some  uncertainty  as  to  the  exact  limit,  fixed  by  the  voluntary 
law  of  nations,  to  our  right  to  appropriate  to  our  own  use  the 
property  of  an  enemy,  or  to  subject  it  to  military  contributions, 
there  is  no  doubt,  whatever,  respecting  its  waste  and  useless 
destruction.  This  is  forbidden  alike  by  the  law  of  nature,  and 
the  rules  of  war.  But  if  such  destruction  is  necessary  in  order 
to  cripple  the  operations  of  the  enemy,  or  to  insure  our  own 
success,  it  is  justifiable.  Thus,  if  we  cannot  bring  off  a  captured 
vessel,  we  may  sink  or  burn  it  in  order  to  prevent  its  falling 
into  the  enemy's  hands ;  but  we  cannot  do  this  in  mere  wanton- 
ness. We  may  destroy  provisions  and  forage,  in  order  to  cut 
off  the  enemy's  subsistence ;  but  we  cannot  destroy  vines  and 
cut  down  fruit  trees,  without  being  looked  upon  as  savage  bar- 
barians. 

§  19.  Laying  waste  a  country.     There  are  numerous  instances 


CH.  XIX.— ENEMY'S  PROPERTY  ON  LAND.  213 

in  military  history  where  whole  districts  of  country  have  been 
totally  ravaged  and  laid  waste.  Such  operations  have  some- 
times been  defended  on  the  ground  of  necessity,  or  as  a  means 
of  preventing  greater  evils.  It  was  on  this  ground  that  Italy 
and  Spain  justified  their  destruction  of  the  maritime  towns  on 
the  coast  of  Africa,  which  had  become  mere  nests  of  pirates. 
In  1674,  and  again  in  1689  the  French  desolated  with  fire  and 
sword  the  Palatinate,  as  a  barrier  against  invasion.  The  czar, 
Peter  the  Great,  laid  waste  an  extent  of  four-score  leagues  of 
his  own  territory  to  check  the  advance  of  the  Swedes.  Again 
in  1812,  the  Russians  laid  waste  a  vast  extent  of  country  and 
burnt  their  capital,  to  prevent  its  affording  a  shelter  to  the 
French.  Wellington  laid  waste  the  territory  of  his  ally  in  front 
of  Torres  Yedras,  to  prevent  the  French  from  advancing  on  his 
lines. 

§  20.  Rule  of  moderation.  Although  there  may  be  cases  of 
special  exception,  the  general  rule  by  which  we  should  regulate 
our  conduct  toward  an  enemy,  is  that  of  moderation,  and  on  no 
occasion  should  we  unnecessarily  destroy  his  property.  "  The 
pillage  and  destruction  of  towns,"  says  Yattel,  "the  devastation 
of  the  open  country,  ravaging  and  setting  fire  to  houses,  are 
measures  no  less  odious  and  detestable,  on  every  occasion  when 
they  are  evidently  put  in  practice  without  absolute  necessity,  or 
at  least  very  cogent  reasons.  But  as  the  perpetrators  of  such 
outrageous  deeds  might  attempt  to  palliate  them  under  pretext 
of  deservedly  punishing  the  enemy,  be  it  here  observed  that  the 
natural  and  voluntary  law  of  nations  does  not  allow  us  to  inflict 
such  punishments,  except  for  enormous  oifenses  against  the  law 
of  nations,  and  even  then,  it  is  glorious  to  listen  to  the  voice  of 
humanity  and  clemency,  when  rigor  is  not  absolutely  necessary. 
Cicero  condemns  the  conduct  of  his  countrymen  in  destroying 
Corinth,  to  avenge  the  unworthy  treatment  offered  to  the 
Roman  ambassadors,  because  Rome  was  able  to  assert  the 
dignity  of  her  ministers,  without  proceeding  to  such  extreme 
rigor." 


214       INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

§  21.  All  booty  belongs  primarily  to  the  state.  Towns,  forts, 
lands,  and  all  immovable  property  taken  from  an  enemy,  are 
called  conquests  ;  while  captures  made  on  the  high  seas  are  called 
maritime  prizes;  but  all  movables  taken  on  land  come  under 
the  denomination  of  booty.  All  captures  in  war,  whether  con- 
quests, prizes,  or  booty,  naturally  belong  to  the  state  in  whose 
name,  and  by  whose  authority  they  are  made.  It  alone  has 
such  claims  against  the  enemy  as  will  authorize  the  seizure  and 
conversion  of  his  property ;  the  military  forces  who  make  the 
seizures  are  merely  the  instruments  of  the  state,  employed  for 
this  purpose  ;  they  do  not  act  on  their  individual  responsibility, 
or  for  their  individual  benefit.  They,  therefore,  have  no  other 
claim  to  the  booty  or  prizes  which  they  may  take,  than  their 
government  may  see  fit  to  allow  them.  The  amount  of  this 
allowance  is  fixed  by  the  municipal  laws  of  each  state,  and  is 
different  in  different  countries. 

§  22.  Distribution  in  different  states.  Among  the  Eomans, 
the  soldier  was  obliged  to  bring  into  the  public  stock  all  the 
booty  he  had  taken.  This  the  general  caused  to  be  sold,  and 
after  distributing  a  part  of  the  produce  of  such  sale  among  the 
soldiers  according  to  their  rank,  he  consigned  the  residue  to  the 
public  treasury.  It  is  the  general  practice  in  modern  times, 
under  the  laws  and  ordinances  of  the  belligerent  governments, 
to  distribute  the  proceeds,  or  at  least  a  part  of  the  proceeds,  of 
captured  property  among  the  captors,  as  a  reward  for  bravery, 
and  a  stimulus  to  exertion.  In  France  the  distribution  of  booty 
is  partly  regulated  by  prize  ordinances,  and  partly  left  to  the 
discretion  of  the  authorities.  In  Great  Britain  prize  money  is 
distributed  by  the  courts  under  the  statutes,  but  booty  is  distri- 
buted according  to  the  regulations  established  by  the  crown. 
In  the  United  States,  by  copying  the  English  laws,  we  allow 
prize-money  on  maritime  captures,  but  not  on  booty,  the  Presi- 
dent not  having  the  power  of  the  crown,  under  the  English 
constitution,  to  divide  booty. 


CHAPTER   XX. 

ENEMY'S  PROPERTY  ON  THE  HIGH  SEAS. 

§  1.  No  relaxation  of  ancient  rules  as  to  maritime  captures. 
While  "  the  progress  of  civilization  has  slowly  but  constantly 
tended  to  soften  the  extreme  severity  of  the  operations  of  war 
by  land/'  says  Wheaton,  "  it  still  remains  unrelaxed  in  respect 
to  maritime  warfare,  in  which  the  private  property  of  the  enemy, 
taken  at  sea  or  afloat  in  port,  is  indiscriminately  liable  to  cap- 
ture and  confiscation." 

§  2.  Attempts  to  modify  it.  Many  able  modern  writers  and 
statesmen  have  endeavored  to  modify  the  ancient  rule.  As 
already  stated,  the  government  of  the  United  States  proposed 
to  add  to  the  first  article  of  the  "  declaration  concerning  mari- 
time law,''  made  by  the  conference  of  Paris,  April  16,  1856,  the 
following  words  ;  "  and  the  private  property  of  the  subjects  or 
citizens  of  a  belligerent  on  the  high  seas  shall  be  exempted 
from  seizure  by  public  armed  vessels  of  the  other  belligerent, 
except  it  be  contraband."  But  this  has  not  been  generally 
adopted. 

§  3.  Present  rnle.  It  may  therefore  be  stated  as  the  existing 
and  established  law  of  nations,  that,  when  two  powers  are  at 
war,  they  have  a  right  to  make  prize  of  the  ships,  goods,  and 
effects  of  each  other  upon  the  high  seas ;  and  that  this  right  of 
capture  includes  not  only  government  property,  but  also  the 
private  property  of  all  citizens  and  subjects  of  the  belligerent 
powers,  and  of  their  allies.  Whatever  bears  the  character  of 
enemy's  property  (with  a  few  exceptions  to  be  hereafter  noticed), 

215 


216        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

if  found  upon  the  ocean,  or  afloat  in  port,  is  liable  to  capture  as 
a  lawful  prize  by  the  opposite  belligerent. 

§  4.  Difficulties  in  its  application.  Notwithstanding  the  clear- 
ness and  apparent  simplicity  of  this  rule,  there  is  frequently 
great  difficulty  in  its  application  to  particular  cases.  Where  the 
question  turns  solely  on  the  evidence  as  to  the  facts  of  the  case, 
it  is  attended  with  no  other  difficulties  than  those  which  usually 
belong  to  a  judicial  investigation  of  facts;  but,  in  numerous 
cases  where  the  facts  are  admitted  or  clearly  proved,  questions 
of  much  difficulty  arise  as  to  their  legal  import  under  the  laws 
of  war,  and  the  rules  by  which  prize  courts  are,  or  ought  to  be, 
governed.  War  establishes  very  different  relations  between 
parties  from  those  which  exist  in  the  ordinary  transactions  of 
trade  and  pacific  intercourse,  and  from  those  new  relations  arise 
new  duties  and  new  obligations.  Hence  the  rules  which  govern 
the  decisions  of  prize  courts,  under  the  law  of  nations,  with 
respect  to  the  ownership  of  property,  widely  differ,  in  many 
respects,  from  those  which  obtain  in  time  of  peace  in  the  courts 
of  civil  or  common  law.  This  renders  necessary  a  special 
examination  of  the  law  of  prizes,  and  the  investigation  of  many 
nice  and  refined  distinctions  in  the  application  of  that  law. 

§  5.  Ownership  at  time  of  capture.  For  example,  the  legality, 
or  illegality  of  the  capture  of  goods  upon  the  high  seas,  will 
frequently  turn  upon  the  question  of  ownership  at  the  time  of 
capture ;  for  when  property  is  shipped  from  a  neutral  country  to 
an  enemy's,  or  from  an  enemy's  country  to  a  neutral,  the  ques- 
tion of  its  national  character,  whether  it  is  neutral  or  hostile, 
can  only  be  determined,  by  ascertaining  whether  the  right  of 
property,  at  the  time  of  shipment  was  vested  in  the  shipper  or 
in  the  consignee.  If,  in  order  to  determine  this  question,  we 
were  to  refer  only  to  the  rules  established  by  courts  of  civil  and 
common  law,  we  should  be  liable  to  form  an  erroneous  conclu- 
sion, as  these  rules  differ  in  some  respects  from  those  which 
govern  courts  of  prize,  while,  in  others,  they  are  precisely  the 
same  in  all  courts. 


CH.  XX.— ENEMY'S  PROPERTY  ON  THE  HIGH  SEAS.    217 

§  6.  Rule  as  to  consignee.  The  general  rule  of  law,  both  in- 
ternational and  civil,  or  common,  is,  that  goods  in  the  course  of 
transportation  from  one  place  to  another,  if  they  are  shipped  on 
account  and  at  the  risk  of  the  consignee,  in  consequence  of  a 
prior  order  or  purchase,  are  considered  as  his  goods  during 
the  voyage.  This  rule  may,  both  by  the  civil  and  common  law, 
be  varied  by  an  express  stipulation  between  the  parties,  or  by 
the  usage  of  a  particular  trade ;  but  neither  of  these  exceptions 
are  admitted  in  courts  of  prize. 

§  7.  Contract  and  shipment  made  in  contemplation  of  war. 
This  rule  is  not  confined  to  cases  where  the  contract  and  ship- 
ment are  made  in  time  of  actual  war.  If  they  are  made  in 
time  of  peace,  but  in  contemplation  of  war,  and  with  the  mani- 
fe^  intention  of  protecting  the  property  from  hostile  capture, 
they  are  equally  a  fraud  upon  the  belligerent  povv'cr  to  which  the 
right  of  capture  belongs. 

§  8.  Contract  made  before  and  shipment  in  war.  And  if  the  con- 
tract is  made  during  a  peace,  and  not  in  contemplation  of  war, 
but  the  shipment  be  made  after  hostilities  have  commenced,  and 
with  a  knowledge  of  the  war,  the  private  agreement  of  the 
parties,  by  which  the  neutral  consignor  assumes  the  risk  of 
delivery,  will  not  be  permitted  to  affect  the  rights  of  the  cap- 
turing belligerent. 

§  9.  If  both  be  made  in  time  of  peace.  But  where  the  ship- 
ment of  the  goods,  as  well  as  the  contract,  laying  the  risk  on 
the  neutral  consignor,  are  both  made  in  time  of  peace,  and  not 
in  contemplation  of  war,  the  legal  ownership  which  was  in  the 
consignor,  at  the  inception  of  the  voyage,  remains  in  him  until 
its  termination. 

§  10.  Shipment  at  risk  of  neutral  consignee.  And,  again, 
where  the  goods  are  shipped  by  an  enemy  consignor,  during  the 
war,  and  under  a  prior  sale,  or  an  unconditional  contract  of  sale, 
the  property  so  shipped  vests  absolutely  in  the  neutral  consignee, 
by  delivery  to  the  master,  and  if  otherwise  innocent,  and  the 
title  remains  unchanged,  it  is  exempted  from  capture  during  the 
19  2  c 


218        INTERNATIONAL    LAW  AND  LAWS  OF  WAR. 

voyage.  The  reason  is  obvious  :  the  neutral  violates  no  duties 
toward  one  belligerent  by  trade,  otherwise  lawful,  with  the  op- 
posing belligerent ;  and  the  only  question  is  that  of  ownership, 
which,  by  the  supposition,  is  in  the  neutral  consignee. 

§  11.  If  neutral  consignor  become  an  enemy  during  voyage. 
The  same  considerations  apply  where  the  shipment  is  made  in 
time  of  peace  by  a  neutral  consignor  who  becomes  an  enemy 
before  the  completion  of  the  voyage,  although  there  does  not, 
perhaps,  exist  the  same  grounds  of  suspicion  as  when  the  con- 
signor is  an  enemy  at  the  time  of  shipment.  Nevertheless,  the 
courts,  even  in  this  case,  require  the  clearest  evidence  of  neutral 
ownership. 

§  12.  Acceptance  in  transitu  by  neutral  consignee.  Where 
goods  are  shipped  by  an  enemy  consignor  to  a  neutral  consignee, 
not  under  a  prior  order,  but  with  the  expectation  that  they  will 
be  received  on  the  terms  proposed,  if  they  are  in  fact  accepted 
by  the  consignee  previous  to  the  capture,  it  was  held,  by  Sir 
William  Scott,  that  his  acceptance  vests  and  perfects  his  title, 
and  that,  upon  proof  of  the  fact,  the  property  will  be  restored. 
To  exempt  the  property  from  capture,  however,  the  acceptance 
must  be  absolute  and  unconditional. 

§  13.  Change  of  ownership  by  stoppage  in  transitu.  Every 
consignor,  not  only  at  common  law,  but  by  a  rule  of  the  general 
mercantile  law,  has,  in  certain  cases,  a  control  over  the  shipment, 
which  is  technically  called  a  i-iglit  of  stoppage  in  transitu;  that 
is,  a  right  to  countermand  the  bill  of  lading,  and  re-possess 
himself  of  the  goods,  at  any  time  after  their  shipment  and  before 
their  arrival  at  their  destined  port.  The  only  case  in  wliich 
this  right  of  stoppage  in  transitu  can  be  legally  exercised,  under 
the  laws  of  war,  is,  in  the  expectation,  confirmed  by  the  event, 
of  the  insolvency  of  the  consignee.  If  the  consignee,  previous 
to  the  arrival  of  the  goods,  communicate  to  the  consignor  his 
determination  not  to  receive  or  pay  for  the  goods,  these  facts 
are  deemed  equivalent  to  actual  insolvency.  But  a  revocation 
of  the  consignment,  from  fears  of  the  insolvency  of  the  consignee, 


CH.  XX.— ENEMY'S  PROPERTY  ON  THE  HIGH  SEAS.    219 

which  are  not  confirmed  by  the  event,  is  not  deemed  sufficient 
to  change  the  ownership.  The  eifect  of  this  right,  when  duly- 
exercised,  is  to  save  the  property  from  its  liability  to  capture, 
where  the  consignment  is  made  from  a  neutral  to  an  enemy ; 
and  to  incur  that  liability,  where  the  consignment  is  made  from 
an  enemy  to  a  neutral. 

§  14.  National  character  of  goods.  But  these  cases  are  properly 
exceptions  to  the  general  and  well  settled  rule  of  the  English 
admiralty,  that,  in  time  of  war,  the  national  character  of  pro- 
perty cannot  be  changed  by  a  transfer  to  a  neutral  during  the 
transportation.  That  which  was  enemy's  property  at  the  com- 
mencement of  the  voyage,  remains  liable  to  capture,  until  its 
arrival  at  the  port  of  destination.  Nor,  is  the  application  of  the 
rule  confined  to  a  transfer  in  actual  war.  If  it  appear  that  the 
immediate  motive  of  the  transfer,  although  made  in  time  of 
peace,  was  the  expectation  of  war,  and  that  this  fact  was  known 
to  the  purchaser,  the  contract  is  held  to  be  equally  invalid,  as 
against  the  belligerent  whose  right  of  capture  was  meant  to  be 
evaded. 

§  15.  Transfer  of  enemy's  ships  to  neutrals.  The  transfer,  in 
time  of  war,  of  the  vessels  of  an  enemy  to  a  neutral,  is  a  trans- 
action, from  its  very  nature,  liable  to  strong  suspicion,  and  con- 
sequently is  examined  with  a  jealous  and  sharp  vigilance,  and 
subjected  to  rules  of  a  peculiar  strictness  in  the  prize  court  of 
the  opposite  belligerent.  Nevertheless,  neutrals  have  a  right  to 
make  such  purchases  of  merchant  vessels,  when  they  act  with 
good  faith,  and,  consequently,  the  belligerent  powers  are  not 
justified,  by  the  law  of  nations,  in  attempting  to  prohibit  such 
transfers  by  a  sweeping  interdiction,  as  was  done  in  former 
years  by  both  the  French  and  English  governments.  Ordi- 
nances of  this  character  form  no  part  of  the  law  of  nations,  and, 
consequently,  are  not  binding  upon  the  prize  courts,  even  of  the 
country  by  which  they  are  issued.  Nevertheless,  where  the  sale 
is  claimed  to  have  been  made  by  an  enemy  to  a  neutral,  in  time 
of  war,  it  is  not  unreasonable  that  its  motives,  nature,  and 


220        INTERNATIONAL  LAW  AND  LAWS  OF  WAB. 

terms  should  be  an  object  of  the  most  searching  inquiry.  The 
temptation  to  fraud,  in  such  cases,  is  so  great  that  the  entire 
transaction  should  be  most  strictly  examined,  otherwise  the 
opposing  belligerent  might  be  deprived  of  his  just  rights  of 
capture.  Hence  courts  of  admiralty  have  established  very 
severe  rules  respecting  such  transfers. 

§  16.  Ships  of  war,  etc.  It  is  held  that  neutrals  cannot  pur- 
chase ships  of  war  from  either  of  the  belligerents.  And  any 
vessel  of  war  so  conveyed  to  a  neutral  is  subject  to  capture  and 
condemnation  by  the  other  belligerent  in  the  hands  of  a  neutral 
purchaser,  on  the  ground  that  the  enemy's  title  is  unextin- 
guished. 

§  17.  General  rule  as  to  character  of  ships  and  goods.  It  fol- 
lows, from  the  rules  of  decision  heretofore  announced,  that  the 
character  of  property  on  the  high  seas,  whether  vessels  or  goods, 
results,  as  a  general  rule,  from  the  character  of  their  owners,  or 
those  who  are  regarded  in  international  law  as  owners.  If  such 
owners  are  hostile,  friendly  or  neutral,  according  to  the  particu- 
lar rules  of  law  applicable  to  the  state  of  war,  their  property  is, 
in  general,  to  be  considered  hostile,  friendly  or  neutral,  and  as 
such,  is  subject  to,  or  exempt  from,  capture. 

§  18.  Effect  of  liens.  In  determining  the  national  character 
of  property,  courts  of  prize  generally  look  only  to  the  legal 
title ;  and  when,  from  the  papers,  the  right  of  property  in  a 
captured  ship  or  cargo  appears  to  be  vested  in  an  enemy,  no 
equitable  or  secret  liens  of  a  neutral  or  a  subject  can  be  made 
the  foundation  of  a  claim  to  defeat  or  vary  the  rights  of  the 
captors.  The  only  exception  to  this  rule,  is  where  the  lien  is 
immediately  and  visibly  incumbent  upon  the  property,  and 
consequently,  is  one  which  the  party  claiming  its  benefit  has  the 
means  of  enforcing  without  resort  to  legal  process.  Of  such  a 
nature  is  the  freight  due  to  the  owner  of  the  ship,  for  the  ship- 
owner has  the  cargo  in  his  possession,  subject  to  his  demand  of 
freight  money,  by  the  general  law,  independent  of  any  contract. 
The  distinction  between  the  two  classes  of  liens  is  properly  ex- 


CH.  XX.— ENEMY'S  PROPERTY  ON  THE  HIGH  SEAS.    221 

pressed  in  the  language  of  the  civil  law,  by  regarding  one  as  a 
jiLS  ad  rem,  and  the  other  as  a  jus  in  re. 

§  19.  Documentary  proofs  of  ownership.  It  is  stated  by  Mr. 
Wheaton  that,  in  addition  to  the  certificate  of  registry,  which  is 
the  proof  naturally  to  be  looked  to  for  the  national  character 
of  the  ship,  the  following  proofs  of  property  in  a  vessel  and 
cargo  are  usually  required :  "  1st,  The  Passport  or  Sea-Letter. 
This  is  a  permission  from  the  neutral  state  to  the  master  of  the 
vessel  to  proceed  on  the  intended  voyage,  and  usually  contains 
his  name  and  residence,  the  name,  description,  and  destination 
of  the  vessel,  with  such  other  matter  as  the  local  law  and  prac- 
tice require.'^  "  2d,  The  Ifuster  Roll,  or  Role  d^ Equipage, 
containing  the  names,  ages,  quality,  and  national  character  of 
the  ship's  company."  "  3d,  The  Charter  Party ;  if  the  vessel 
has  been  let  to  hire."  "  4th,  The  Bills  of  Lading,  by  which  the 
master  acknowledges  the  receipt  of  the  goods  specified  therein, 
and  promises  to  deliver  to  the  consignee  or  his  order."  "5th, 
The  Invoices,  which  contain  the  particulars  and  prices  of  each 
parcel  of  the  goods,  with  a  statement  of  the  charges  thereon." 
"  6th,  The  Log-book,  or  ship's  JourTWil,  which  contains  an  accu- 
rate account  of  the  vessel's  course,  with  a  short  history  of  the 
occurrences  during  the  voyage."  "  As  the  whole  of  these  papers 
may  be  fabricated,"  says  Mr.  Wheaton,  "  their  presence  does  not 
necessarily  imply  a  fair  case ;  neither  does  the  absence  of  any  of 
them  furnish  a  conclusive  ground  of  condemnation,  as  has  been 
most  unjustly  provided  by  the  ordinances  of  certain  belligerent 
powers." 

§  20.  Vessels  of  discovery.  Vessels  of  discovery,  or  of  expe- 
ditions of  exploration  and  survey,  sent  for  the  examination  of 
unknown  seas,  islands,  and  coasts,  are,  by  general  consent,  ex- 
empt from  the  contingencies  of  war,  and  therefore  not  liable  to 
capture.  Like  the  sacred  vessel  which  the  Athenians  sent  with 
their  annual  offerings  to  the  temple  of  Delos,  they  are  respected 
by  all  nations,  because  their  labors  are  intended  for  the  benefit 
of  all  mankind.     Such  expeditions   must   confine  themselves 

19* 


222        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

most  strictly  to  the  object  in  view ;  if  they  commit  any  act  of 
hostility  they  forfeit  their  exemption  from  capture. 

§  21.  Fishing-boats.  Fishing-boats  have,  also,  as  a  general 
rule,  been  exempted  from  the  effects  of  hostilities.  French 
writers  consider  this  exemption  as  an  established  principle  of 
the  modern  law  of  war,  and  it  has  been  so  recognized  in  the 
French  courts,  which  have  restored  such  vessels  when  captured 
by  French  cruisers. 

§  22.  Cases  of  shipwreck.  Some  have  contended  that  the 
rule  of  exemption  ought  to  extend  to  cases  of  shipwreck  on  a 
belligerent  coast,  to  cases  of  forced  refuge  in  a  belligerent  har- 
bor by  stress  of  weather,  or  want  of  provisions,  and  even  to 
cases  of  entering  such  ports  from  ignorance  of  the  war.  There 
are  exceptional  cases  where  such  exemption  has  been  granted. 
Notwithstanding  the  plea  raised  by  French  writers  in  such  cases 
that  "  le  malheur  opere  de  plein  droit  une  treve,^^  the  principle  is 
neither  admitted  by  the  general  law  of  nations  nor  by  the 
maritime  ordonnances  of  France. 


CHAPTER  XXI. 

TRADE  WITH  THE  ENEMY. 

§  1.  All  property  of  subjects  engaged  in  trade  with  the  enemy 
liable  to  confiscation.  It  may  be  stated,  as  a  general  proposition, 
that  the  property  of  a  subject  found  engaged  in  trade  or  inter- 
course with  the  ports,  territories,  or  subjects  of  a  public  enemy, 
is  liable  to  confiscation.  This  rule  is  not  founded  on  any  pecu- 
liar criminality  in  the  intentions  of  the  party,  or  on  any  direct 
loss  or  injury  resulting  to  the  state,  but  is  the  necessary  conse- 
quence of  a  state  of  war,  which  places  the  citizens  or  subjects 
of  the  belligerent  states  in  hostility  to  each  other,  and  prohibits 
all  intercourse  between  them. 

§  2.  Same  rule  applicable  to  subjects  of  an  ally.  The  same 
rule  is  applicable  to  the  sujects  of  an  ally.  Where  two  or  more 
states  are  allied  in  a  war,  the  relations  of  the  subjects  of  the 
ally  toward  the  common  enemy,  are  precisely  the  same  as  those 
of  the  subjects  of  the  principal  belligerent.  In  this  respect, 
there  is  no  distinction  between  the  two ;  and  if  the  courts  of 
their  own  country  do  not  enforce  the  rights  and  duties  of  war, 
those  of  the  principal  or  co-belligerent  may  do  so,  for  the  tri- 
bunals of  all  have  an  equal  right  to  enforce  the  laws  of  war, 
and  to  punish  any  infractions,  whether  committed  by  the  sub- 
jects of  their  own  government,  or  of  that  of  an  ally. 

§  3.  Rule  vigorously  enforced.  The  rule  which  prohibits 
every  form  of  commercial  intercourse  or  trade  with  the  enemy, 
whether  by  the  subjects  of  the  belligerent  or  of  his  allies,  is  en- 
forced in  courts  of  prize  with  a  stern  and  inflexible  rigor.  "No 
motives    of    compassion    or    indulgence,"    says     Mr.     Duer, 


224        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

"prompted  by  the  hardship  of  the  particular  case,  nor  any 
views  of  public  utility,  derived  from  the  innocent  or  benelicial 
nature  of  the  particular  traffic,  are  ever  allowed  to  suspend  or 
mitigate  its  application.  Such  considerations  are  not  regarded 
as  legal  distinctions  that  can  operate  to  create  an  exception  from 
the  general  rule.  They  may  influence  properly  the  discretion 
of  the  executive  power,  but  must  be  rejected  by  the  judicial 
conscience." 

§  4.  Exceptions  to  rule.  There  are  but  two  exceptions  to  this 
general  rule  interdicting  trade  with  the  enemy:  First,  the  mere 
exercise  of  the  rights  of  humanity,  and,  second,  the  trade  sanc- 
tioned by  the  license  or  authority  of  the  government.  The  first 
of  these  exceptions  would  permit  intercourse  with  the  enemy, 
to  such  a  limited  extent,  and  of  so  rare  an  occurrence,  as  to  re- 
quire no  particular  discussion ;  the  second,  results  from  the  fact, 
that  on  certain  occasions  it  is  highly  expedient  for  the  state  to 
permit  an  intercourse  with  the  enemy,  by  commerce  or  other- 
wise ;  but  the  state  alone,  and  not  individuals,  must  determine 
when  it  shall  be  permitted,  and  under  what  regulations.  With- 
out such  direct  permission  of  the  state,  no  commercial  inter- 
course with  the  enemy  is  allowed  to  subsist. 

§  5.  Withdrawal  from  enemy's  country  at  beginning  of  war. 
Many  publicists  have  urged  that,  inasmuch  as  the  enemy  usu- 
ally permits  our  citizens  to  withdraw  with  their  property  at  the 
beginning  of  a  war,  we  cannot  with  propriety  regard  such  with- 
drawal as  coming  within  the  rule  of  prohibited  trade,  if  it  be 
made  without  unreasonable  delay. 

§  6.  DistiQction  between  cases  of  domicil  and  mere  residence. 
A  distinction  must  be  here  noticed  between  the  property  of  a 
citizen  resident  in  a  foreign  country,  and  that  of  one  domiciled 
in  the  belligerent  states.  The  property  of  a  citizen  domiciled 
in  a  foreign  country,  when  that  country  becomes  involved  in  a 
war  with  that  of  his  allegiance,  is  at  once  liable  to  be  con- 
demned as  that  of  an  enemy.  But  that  of  a  citizen  simply  resi- 
dent in  the  belligerent  state,  if  condemned  on  his  attempt  to 


CH.  XXL— TRADE   WITH  THE  ENEMY.  225 

withdraw  it  from  the  enemy's  country,  must  be  condemned  as 
that  of  a  citizen  engaged  in  an  unlawful  trade  with  the  enemy. 
The  supreme  court  of  the  United  States  have  decided  that  the 
property  of  American  citizens  domiciled  in  an  enemy's  country, 
although  shipped  before  a  knowledge  of  the  war,  was,  by  that 
event,  irredeemably  stamped  with  a  hostile  character,  and  the 
goods  were  condemned  as  a  lawful  prize.  But  the  case  of  a 
citizen,  merely  resident  in  the  enemy's  country,  presents  a  very 
different  question. 

§  7.  Withdrawal  by  a  mere  resident.  The  weight  of  authority 
seems  to  be  in  favor  of  the  right  of  a  mere  resident  in  an  ene- 
my's territory  to  withdraw  his  effects,  if  it  be  done  within  rea- 
sonable time  after  the  knowledge  of  the  war.  But  in  most  cases 
he  must  obtain  a  permit  or  license  from  his  own  government,  as 
otherwise  voluntary  trading  will  be  presumed.  If  the  circum- 
stances be  shown  to  be  such  that  no  license  could  be  applied  for 
without  defeating  the  withdrawal,  it  should  not  be  required. 
The  slightest  indication  of  abuse  or  fraud  would  cause  con- 
demnation. 

§  8.  Attempts  to  extend  the  exception.  Many  unsuccessful 
attempts  have  been  made  to  establish  other  exceptional  cases,  as 
where  the  property  in  the  specific  goods  was  acquired  before  the 
war ;  or  where  the  goods  were  actually  shipped  as  well  as  pur- 
chased before  hostilities  commenced;  or  where  the  ship  on 
which  the  goods  were  found  had  been  forcibly  detained;  or 
where  the  goods  were  the  produce  of  funds  in  the  enemy's 
country  which  the  party  had  no  other  means  of  withdrawing. 
But  all  these  were  regarded  as  cases  of  illegal  trading. 

§  9.  Where  order  of  shipment  cannot  be  countenanced.  Goods 
imported  from  the  enemy's  country  during  the  war,  if  purchased 
under  an  order  given  previous  to  the  commencement  of  hostili- 
ties, and  there  was  no  possibility  of  countermanding  the  order 
before  shipment,  have  been  exempted  from  confiscation.  But 
it  must  be  shown  that  all  possible  diligence  was  used,  after  the 
first  notice  of  hostilities,  to  countermand  the  voyage. 

2  D 


226         INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

§  10.  Good  faith  or  a  mistake  no  defense.  The  good  faith  or 
mistake  of  the  party,  affords  no  protection  to  the  ship  or  goods 
engaged  in  illegal  trade  with  an  enemy.  The  entire  absence  of 
any  intention  to  violate  the  law,  no  matter  how  perfect  the  inno- 
cence of  the  intent  may  have  been,  nor  whether  the  act  resulted 
from  mistake  or  ignorance,  cannot  avert  the  penalty  of  con- 
fiscation. 

§  11.  Trade  through  a  neutral  port.  The  ulterior  destination 
of  the  goods  determines  the  character  of  the  trade,  no  matter 
how  circuitous  the  route  by  which  they  are  to  reach  that  des- 
tination. Even  where  the  ship  in  which  the  goods  are  embarked 
is  destined  to  a  neutral  port,  and  the  goods  are  there  to  be 
unladen,  yet,  if  they  are  to  be  transported  thence,  whatever 
may  be  the  mode  of  conveyance,  to  an  enemy's  port  or  territory, 
they  fall  within  the  interdiction  and  penalty  of  the  law.  The 
converse  of  this  is  also  undoubtedly  true ;  that  is  trade  from  an 
enemy's  country,  through  a  neutral  port,  is  unlawful,  and  the 
goods  so  shipped  through  a  neutral  territory,  even  though  they 
may  be  unladen  and  transhipped,  are  liable  to  condemnation. 
It  is  an  attempt  to  carry  on  trade  with  the  enemy,  by  the  cir- 
cuitous route  of  a  neutral  port,  and  thus  evade  the  penalty  of 
the  law. 

§  12.  Continuous  voyages.  A  vessel  engaged  in  unlawful 
trade  with  the  enemy  is  liable  to  capture  and  condemnation  at 
any  time  during  the  voyage,  in  which  the  offense  is  committed, 
but  not  after  the  voyage  is  completed.  If,  however,  the  voyage 
is  continuous  and  entire,  although  consisting  of  separable  parts, 
she  is  liable  to  capture  while  any  portion  of  it  remains  to  be 
performed,  even  where  the  part  in  which  the  offense  was  com- 
mitted has  been  completed. 

§  13.  When  offense  is  completed.  Actual  trade  with  the 
enemy  is  not  necessary  to  subject  a  ship  or  goods  to  confiscation. 
It  is  sufficient,  as  a  general  rule,  that  they  are  engaged  in  a 
voyage  with  that  design,  in  order  to  complete  the  offense  and  to 
incur  the  penalty.     So  also  a  ship  belonging  to  a  subject,  and 


CH.  XXL— TRADE   WITH  THE  ENEMY.  227 

proceeding  to  an  enemy^s  port  in  ballast,  with  no  positive  intention 
of  procuring  a  cargo,  or  returning  therefrom  without  any  cargo, 
would  be  liable  to  capture  both  on  her  outward  and  return  voyage. 
It  would  be  in  vain  to  allege  that  there  was  no  act  or  intention  of 
trading.  But  the  mere  intention  to  trade  with  the  enemy  is  not 
punishable,  if  at  the  time  of  capture  the  execution  of  the  intent 
is  no  longer  practicable.  Where,  from  fortuitous  circumstances, 
whether  known  or  unknown  to  the  parties,  the  execution  of  the 
design  can  no  longer  be  effected,  the  intent  does  not  constitute 
the  crime,  for  no  crime  could  be  committed. 

§  14.  Share  of  partner  in  neutral  house.  Where  the  property 
seized  for  illegal  traffic  With  the  enemy,  belongs  to  a  house  of 
trade,  established  in  a  neutral  country,  but  of  which  one  of  the 
partners  is  a  resident  subject  of  the  belligerent  country,  his 
share,  notwithstanding  the  neutrality  of  the  house,  is  condemned. 
The  rule  is  equally  applicable,  even  where  the  belligerent  party 
is  strictly  dormant,  and  takes  no  part  whatever  in  the  direction 
and  management  of  the  affairs  of  such  trading  house.  If  he 
is  a  party  interested  in  the  property  so  contaminated,  he  must 
suffer  the  penalty  of  the  offense.  He  cannot  engage  as  a 
partner  in  a  transaction  in  which  he  could  not  lawfully  engage, 
if  alone. 

§  15.  Transfer  of  ships.  Courts  of  prize  regard  with  extreme 
suspicion  and  jealousy,  the  transfer  of  ships  from  subjects  to 
neutrals,  during  the  war.  If  such  a  ship  is  subsequently 
employed  in  a  trade  with  the  enemy,  very  slight  indicia  of  fraud 
would  cause  her  condemnation.  Thus,  an  English  vessel, 
asserted  to  have  been  sold  to  a  neutral,  after  hostilities  had  been 
commenced  between  England  and  Holland,  was  captured  while 
engaged  in  trade  between  Guernsey  and  Amsterdam,  under  the 
command  of  her  former  master,  who  had  also  been  the  owner, 
and  it  was  held  by  Sir  William  Scott,  that  the  transfer  was 
colorable  and  void,  and  he  condemned  both  ship  and  cargo. 

§  16.  Regularity  of  papers  not  conclusive.  Eegularity  of 
papers,  in  such  cases,  are  not  conclusive  evidence  of  ownership ; 


228        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

for,  as  remarked  by  Sir  William  Scott,  in  the  case  of  The  Odiuy 
where  there  is  an  intention  to  deceive,  the  regularity  of  the 
paper  documents  is  necessary  part  of  the  apparatus  and  machi- 
nery of  the  fraud.  Although  regular  documents,  if  duly  veri- 
fied and  supported,  are  presumptive  evidence,  yet,  if  the  circum- 
stances and  facts  of  the  case  lead  justly  to  the  conclusion  that 
these  papers,  however  formal,  are  themselves  false,  the  court  will 
not  be  bound  by  them.  Where  the  papers  say  one  thing,  and  the 
facts  of  the  case  another,  the  court  will  exercise  a  sound  judg- 
ment as  to  which  the  preponderance  is  due. 

§  17.  Trade  by  stranger  in  enemy's  country.  When  the  trading 
is  from  a  port  of  the  belligerent,  claiming  the  right  of  capture, 
the  property  is,  as  a  general  rule,  liable  to  confiscation,  if  the 
owner  at  the  inception  of  the  voyage  was  a  resident  in  the 
country,  whether  as  a  native  subject,  a  domiciled  merchant,  a 
mere  stranger,  or  sojourner.  Every  person  in  a  country,  (with 
the  limited  exception  of  ambassadors,  etc.,)  whether  a  native  or 
stranger,  owes  obedience  to  its  laws,  and  the  rule  of  interna- 
tional jurisprudence,  which  forbids  all  intercourse  and  trade  with 
the  public  enemy,  is  just  as  obligatory  upon  him  as  the  muni- 
cipal laws  of  revenue  or  regulations  of  police. 

§  18.  Distinction  as  to  native  subject.  There  exists,  however, 
an  important  distinction  between  the  case  of  a  native  subject  and 
that  of  a  domiciled  stranger  or  mere  sojourner.  "  The  property 
of  the  subject,"  says  Mr.  Duer,  "  where  the  trade  was  illegal  in 
its  origin  and  intent,  cannot  be  redeemed  from  its  guilt  and 
penalty  by  any  subsequent  change  of  his  own  residence ;  but 
that  of  the  domiciled  merchant,  or  stranger,  will  be  restored,  if, 
previous  to  its  capture,  he  had,  in  part,  removed  from  the  bel- 
ligerent country,  with  the  intention  of  returning  to  his  own ; 
for  in  this  case,  the  illegality  that  arose  solely  from  his  local  and 
temporary  allegiance,  by  the  removal  of  its  cause,  has  ceased  to 
exist."  This  distinction  has  been  established  in  a  number  of 
decisions,  both  in  the  United  States  and  in  England. 

§  19.  Acceptance  of  license  from  enemy.    If  a  vessel  belonging 


CH.  XXL— TRADE   WITH  THE  ENEMY.  229 

to  one  of  the  belligerents  prosecutes  a  voyage,  even  to  a  neutral 
port,  under  a  license  from  the  government  of  the  enemy,  both 
ship  and  cargo,  while  they  remain  under  the  protection  of  such 
license,  are  liable  to  capture  and  confiscation.  Such  condemna- 
tion results  from  the  presumption,  not  to  be  resisted,  that  the 
license  is  granted  by  the  enemy  for  the  furtherance  of  his  own 
interests,  and  the  citizen  or  subject  who  lends  himself  to  the 
promotion  of  that  object,  by  accepting  such  license,  violates  the 
plainest  duties  of  his  own  allegiance. 

§  20.  Trade  with  possessions  and  colonies  of  enemy.  The 
unlawfulness  of  trade  with  the  enemy  extends  not  only  to  every 
place  within  his  dominions,  and  subject  to  his  government,  but 
also  to  all  places  in  his  possession  or  military  occupation,  even 
though  such  occupation  has  not  ripened  into  a  conquest  or 
changed  the  national  character  of  the  inhabitants.  In  each 
case  there  is  the  same  hazard  to  the  state,  and,  if  the  hostile 
occupation  is  known  when  the  communication  is  attempted, 
there  is  the  same  breach  of  duty  on  the  part  of  the  subject. 
The  reasons  of  public  policy,  which  forbid  such  intercourse, 
apply  as  fully  in  the  one  case  as  in  the  other.  The  same  rule 
holds  even  in  the  case  of  a  revolted  territory,  or  colony  of  the 
enemy,  which  is  known  to  have  been  for  years  in  the  hands  of 
the  insurgents. 

20 


CHAPTER    XXII. 

RIGHTS  AND  DUTIES  OF  NEUTRALS. 

§  1.  Neutrality  in  war.  Neutrals  in  a  war  are  those  who  take 
no  part  in  it,  but  remain  the  common  friends  of  the  belligerents, 
favoring  the  arms  of  neither  to  the  detriment  of  the  others. 
"  The  neutral,"  says  Phillimore,  "  is  justly  and  happily  desig- 
nated by  the  Latin  expression  in  hello  m-edius.  It  is  of  the  es- 
sence of  his  character  that  he  so  retain  this  central  position,  as 
to  incline  to  neither  belligerent.  He  has  no  jus  bellicum  him- 
self, but  he  is  entitled  to  the  continuance  of  his  ordinary  ^rts 
pads,  with,  as  will  presently  be  seen,  certain  curtailments  and 
modifications  which  flow  from  the  altered  state  of  the  general 
relations  of  all  countries  in  time  of  war."  According  to 
Bynkershoek,  he  has  nothing  to  do  with  the  justice  or  injustice 
of  the  war,  and  can  show  no  favors  to  one  party  in  preference 
to  another. 

§  2.  Qualified  neutrality.  There  is,  however,  a  qualified  neu- 
trality which  forms  an  exception  to  this  definition ;  it  arises  out 
of  antecedent  engagements,  by  which  the  neutral  state  has 
bound  itself  to  one  of  the  parties  to  the  war,  to  furnish  a  limited 
succor,  or  to  extend  certain  privileges.  The  fulfillment  of  such 
an  engagement,  entered  into  prior  to  the  commencement  of  hos- 
tilities, does  not  necessarily  forfeit  the  neutral  character  of  a 
state,  nor  render  it  the  enemy  of  the  other  belligerent  party, 
because  it  does  not  render  the  neutral  the  general  associate  of 
the  belligerent  to  whom  the  succor  or  privilege  is  due.  For 
example,  Switzerland  has  furnished  troops  to  certain  European 
powers,  in  virtue  of  treaty  stipulations,  without  herself  being 

230 


CH.  XXIL— RIGHTS  AND  DUTIES  OF  NEUTRALS.       231 

involved  in  the  wars  in  which  her  troops  were  engaged.  Den- 
mark, in  consequence  of  a  previous  treaty,  furnished  limited 
succors  in  sliips  and  troops  to  Russia,  in  1788,  against  Sweden. 
By  the  treaty  of  amity  and  commerce  between  the  United  States 
and  France,  in  1778,  the  latter  secured  to  herself  the  special 
privilege  of  the  admission  for  her  privateers,  with  their  prizes, 
into  American  ports,  to  the  exclusion  of  her  enemies ;  and  the 
admission  of  her  public  ships  of  war,  in  case  of  urgent  necessity, 
to  refresh,  victual,  repair,  etc.,  but  not  exclusively  of  other  na- 
tions at  war  with  her. 

§  3.  Neutrality  must  be  observed  and  enforced.  States,  not 
parties  to  a  war,  have  not  only  the  right  to  remain  neutral  dur- 
ing its  continuance,  but  to  do  so  conduces  greatly  to  their  ad- 
vantage, as  they  thereby  preserve  to  their  citizens  the  blessings 
of  peace  and  commerce.  While,  in  some  respects,  their  trade 
and  commerce  may  be  increased  in  extent  and  profit,  it  is  re- 
stricted with  respect  to  blockades  and  sieges,  and  the  carrying 
of  contraband,  and  their  vessels  are  subjected  to  the  inconveni- 
ence and  annoyance  of  visit  and  search.  Not  only  are  they 
obliged  to  maintain  strict  impartiality  toward  the  belligerents, 
but  they  are  bound  to  prevent  or  punish  any  violation  of  their 
rights  of  neutrality,  by  either  of  the  parties  at  war  with  each 
other.  These  duties  of  neutrality  extend  not  only  to  preventing 
the  arming  of  cruisers  in  neutral  ports,  and  the  enlistment  of 
men  in  neutral  territory,  but  also  to  the  general  sanctity  of  neu- 
tral jurisdiction,  by  redressing  all  injuries  which  one  belligerent 
may  commit  upon  the  other  within  its  limits. 

§  4.  No  hostilities  to  be  permitted  within  neutral  jurisdiction. 
The  rights  of  war  can  be  exercised  only  within  the  territory 
of  the  belligerent  powers,  upon  the  high  seas,  or  in  territory 
belonging  to  no  one.  Hostilities  cannot  be  lawfully  exercised 
within  the  territorial  jurisdiction  of  the  neutral  state  which  is 
the  common  friend  of  both  parties.  To  grant  any  such  right 
to  one  would  be  a  detriment  to  the  other,  and  to  extend  the 
privilege  to  both  would  necessarily  make  the  neutral  territory 


232        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

the  theatre  of  hostile  operations,  and  involve  the  state  in  the 
consequences  of  the  war.  Hence,  everyvoluntary  entrance  into 
neutral  territory,  with  hostile  purposes,  is  absolutely  unlawful, 
and  the  party  so  trespassing  is  liable  to  be  treated  as  an  enemy, 
unless  full  satisfaction  is  made  for  such  violation  of  neutral 
rights. 

§  5.  Passage  of  troops  through  neutral  territory.  It  was  con- 
tended by  some  of  the  ancient  publicists  that  a  belligerent  had 
an  absolute  right  of  passage  for  his  troops  through  neutral  ter- 
ritory, and  that  the  neutral  could  not  refuse  it  without  injustice. 
But  Vattel  contends  that  such  innocent  passage  through  neutral 
territoiy  may  be  granted  or  refused  by  the  neutral  power,  at  its 
discretion;  that,  if  refused,  the  applicant  has  no  cause  of  com- 
plaint, and  if  granted,  the  opposite  party  can  only  claim  the 
same  privilege  for  his  own  troops.  Many  modern  writers,  and 
the  German  publicists  generally,  have  pronounced  in  favor  of 
the  vicAvs  of  Vattel.  But  Heifter,  Hautefeuille,  Manning,  and 
others,  express  the  opinion,  that  to  grant  such  passage  is  a  vio- 
lation of  neutral  duty,  and  affords  just  cause  of  complaint,  if 
not  of  war,  to  the  other  belligerent.  This  opinion  seems  most 
consonant  with  the  general  principles  of  neutrality. 

§  6.  Pretended  exception  of  Bynkershoek.  Bynkershoek  makes 
one  exception  to  the  general  inviolability  of  neutral  territory, 
and  contends  that  if  a  belligerent  should  be  attacked  on  hostile 
ground,  or  in  the  open  sea,  and  should  flee  within  the  jurisdic- 
tion of  a  neutral  state,  the  victor  may  pursue  him  dum  fervet 
opus,  and  seize  his  prize  within  the  neutral  state.  He  rests  his 
opinion  entirely  on  the  authority  and  practice  of  the  Dutch,  and 
not  on  the  usage  of  any  other  nation. 

§  7.  Opinion  of  European  and  American  writers.  But  this 
opinion  of  Bynkershoek  is  not  supported  by  the  practice  of  na- 
tions, nor  by  writers  on  public  law.  Abreu,  Valin,  Emerigon, 
Vattel,  Azuni,  Sir  William  Scott,  Martens,  Phillimore,  Man- 
ning, and  other  European  writers,  maintain  the  sounder  doc- 
trine, that  when  the  flying  enemy  has  entered  neutral  territory 


CH.  XXIL— BIGHTS  AND  DUTIES  OF  NEUTRALS.       233 

he  is  pla<3ed  immediately  under  the  protection  of  the  neutral 
power,  and  that  there  is  no  exception  to  the  rule  that  every 
voluntary  entrance  into  neutral  territory,  with  hostile  purposes, 
is  absolutely  unlawful.  Kent,  Wheaton,  Story,  and  other  Amer- 
ican writers,  oppose  the  doctrine  of  Bynkershoek ;  and  the  gov- 
ernment of  the  United  States  has  invariably  claimed  the  abso- 
lute inviolability  of  neutral  territory. 

§  8.  Cases  of  the  "  Caroline"  and  the  "  Florida."  In  the  winter 
of  1838,  the  British  armed  forces  pursued  and  destroyed  in 
American  territory  the  rebel  steamer  "  Caroline."  After  a  pro- 
longed discussion  the  British  minister.  Lord  Ashburton,  ad- 
mitted that  the  act  was  "  a  violation  of  territory,''  and  regretted 
*^  that  some  explanation  and  apology  for  this  occurrence  was  not 
immediately  made."  In  1864,  our  naval  forces  attacked  and 
captured  the  rebel  steamer  "Florida,"  in  the  neutral  port  of 
Bahia.  Brazil  protested  against  the  violation  of  her  territory, 
and  our  government  promptly  disavowed  the  acts  of  its  officers, 
and  made  due  reparation  for  the  offense  committed. 

§  9.  Belligerent  vessels  may  be  excluded  from  neutral  ports.  A  neu- 
tral state,  by  virtue  of  its  general  right  of  police  over  its  ports, 
harbors  and  coasts,  may  impose  such  restrictions  upon  belliger- 
ent vessels,  which  come  within  its  jurisdiction,  as  may  be 
deemed  necessary  for  its  own  neutrality  and  peace,  and  so  long 
as  such  restrictions  are  impartially  imposed  upon  all  the  bellig- 
erent powers,  neither  can  have  any  right  to  complain.  This 
right  is  frequently  exercised  in  prohibiting  all  armed  cruisers 
with  prizes  to  enter  such  neutral  ports  and  waters,  and,  even 
without  prizes,  to  obtain  provisions  and  supplies.  This  usage 
is  shown  by  marine  ordinances  and  text-wTiters  of  different 
nations. 

§  10.  Right  of  asylum.  This  restriction,  imposed  by  neutrals 
upon  the  vessels  of  belligerents  which  come  into  their  ports,  is 
never  extended  to  deny  the  rights  of  hospitality  in  case  of  im- 
mediate danger  and  want.  Armed  cruisers  may  anchor  within 
a  neutral  port  as  a  shelter  from  the  attacks  of  an  enemy,  to 

20  ^^  2  E 


234        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

avoid  the  dangers  of  a  storm,  or  to  supply  themselves  with  wa- 
ter, provisions,  and  other  articles  of  pressing  necessity.  Asylum, 
to  this  extent,  is  required  by  the  common  laws  of  humanity,  to 
be  afforded  to  belligerent  vessels  in  neutral  ports.  But  beyond 
this,  there  is  no  right  of  asylum  which  the  neutral  may  not 
withhold  equally  from  all  belligerents.  It  may  prevent  any  free 
communication  with  the  land,  and,  as  soon  as  such  vessels  have 
supplied  their  immediate  wants,  the  neutral  may  compel  them 
to  depart  from  its  jurisdiction. 

§  11.  When  this  right  is  presumed.  But  while  the  neutral 
state  may,  by  proclamation  or  otherwise,  prohibit  belligerent 
vessels  with  prizes  or  prisoners  of  war  from  entering  its  ports, 
the  absence  of  any  such  prohibition  implies  the  right  to  enter 
for  the  purposes  indicated,  and  any  vessel  so  entering  neutral 
waters,  retains  her  right  of  ex-territoriality,  both  with  respect 
to  her  prisoners  of  war  and  her  prizes.  This  question  was 
raised  in  the  port  of  San  Francisco,  California,  in  the  case  of 
the  Russian  vessel.  The  Sitka^  a  prize  of  the  British  navy, 
during  the  Crimean  war. 

§  12.  Duties  of  belligerents  while  in  neutral  waters.  The 
armed  cruisers  of  belligerents  while  within  the  jurisdiction  of  a 
neutral  state,  are  bound  to  abstain  from  any  acts  of  hostility 
toward  the  subjects,  vessels  or  other  property  of  their  enemies ; 
they  cannot  increase  their  guns  or  military  stores,  or  augment 
their  crews,  not  even  by  the  enrollment  of  their  own  country- 
men ;  they  can  employ  neither  force  nor  stratagem  to  recover 
prizes,  or  to  rescue  prisoners  in  the  possession  of  the  enemy ; 
nor  can  they  use  a  neutral  port,  or  waters  within  neutral  juris- 
diction, either  for  the  purpose  of  hindering  the  approach  of 
vessels  of  any  nation  whatever,  or  for  the  purpose  of  attacking 
those  which  depart  from  the  ports  or  shores  of  neutral  powers. 
No  proximate  acts  of  war,  such  as  a  ship  stationing  herself 
within  the  neutral  line,  and  sending  out  her  boats  on  hostile 
enterprises,  can,  in  any  manner,  be  allowed  to   originate   in 


CH.  XXIL— RIGHTS  AND  DUTIES  OF  NEUTRALS.       235 

neutral  territory ;  nor  can  any  measure  be  taken  that  will  lead 
to  immediate  violence. 

§  13.  Distinction  in  regard  to  asylum  to  troops.  Publicists 
make  a  marked  distinction  between  the  duties  of  neutrals,  with 
respect  to  the  asylum  which  may  be  afforded  to  belligerent  ships, 
and  that  which  may  be  afforded  to  belligerent  forces  on  land. 
This  difference,  says  Heffter,  results  from  the  immunity  of  the 
flag,  and  the  principle  that  ships  are  considered  as  a  portion  of 
the  territory  of  the  nation  to  which  they  belong.  Hence  the 
allowable  custom  of  asylum  in  neutral  waters,  and  the  want  of 
power  in  the  neutral  to  interfere  with  internal  organization  of 
such  vessels,  when  not  armed  or  equipped  within  its  jurisdic- 
tion. On  the  other  hand,  troops  are  not  a  part  of  the 
territory  of  the  nation  to  which  they  belong,  nor  has  their  flag 
any  immunity  on  neutral  soil.  While,  therefore,  individuals, 
as  such,  are  entitled,  by  the  laws  of  humanity,  to  the  right  of 
asylum  in  neutral  territory,  such  asylum  cannot  be  demanded 
by,  nor  can  it  be  granted,  without  a  violation  of  neutral 
duty,  to  an  army  as  a  body.  It  is,  consequently,  the  duty  of 
the  neutral  to  order  the  immediate  disarming  of  all  belligerent 
troops  which  enter  neutral  territory  as  an  asylum,  to  cause 
them  to  release  all  their  prisoners,  and  to  restore  all  booty 
which  they  may  bring  with  them.  If  he  neglect  to  do 
this,  he  makes  his  own  territory  the  theatre  of  war,  and  justifies 
the  other  belligerent  in  attacking  such  refugees  within  such 
territory,  which  is  no  longer  to  be  regarded  as  neutral. 

§  14.  United  States  on  enlistments  in  neutral  territory.  At  the 
commencement  of  the  European  war,  in  1793,  the  government 
of  the  United  States  took  strong  grounds  against  the  arming  and 
equipping  of  vessels  within  the  ports  of  the  United  States,  by 
the  respective  belligerent  powers,  to  cruise  against  each  other, 
declaring  such  acts  to  be  a  violation  of  neutral  rights,  and 
positively  unlawful ;  and  that  any  vessel,  so  armed  or  equipped 
in  our  ports,  for  military  service,  was  not  entitled  to  the  rights 
of  asylum.     The  authority  of  Wolfius,  Yattel  and  other  writers 


236        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

on  the  law  and  usage  of  nations,  were  appealed  to,  in  support 
of  these  declarations  and  rules  of  neutrality.  The  ground  then 
assumed  by  the  United  States  is  now  generally  admitted  to  be 
correct.  The  same  objection  -was  made  by  the  United  States,  in 
the  war  of  1793,  against  the  enlisting  of  men  by  the  respective 
belligerent  powers  within  our  ports,  and  it  was  declared  that  if 
the  neutral  state  might  not,  consistently  with  its  neutrality, 
furnish  men  to  either  party  for  their  aid  in  war,  it  was  equally 
unlawful  for  either  belligerent  to  enroll  them  in  the  neutral 
territory. 

§  15.  Loans  of  money  by  neutrals.  The  next  question  to  be 
considered,  is,  whether  neutrals  may  assist  a  belligerent  by 
money,  in  the  shape  of  a  loan  or  otherwise,  without  violating 
the  duties  or  departing  from  the  position  of  neutrality?  It 
seems  to  be  universally  conceded,  that  if  such  loan  be  made  for 
the  manifest  purpose  of  enabling  the  belligerent  to  carry  on  the 
war,  it  would  be  a  virtual  concurrence  in  the  war,  and  conse- 
quently a  just  cause  of  complaint  by  the  opposite  party. 

§  16.  Pursuit  of  enemy  from  neutral  ports.  Armed  cruisers, 
in  neutral  ports,  are  not  only  bound  not  to  violate  the  peace 
while  within  neutral  jurisdiction,  but  they  cannot  use  the 
asylum  as  a  shelter  from  which  to  make  an  attack  upon  the 
enemy.  Hence,  if  an  armed  vessel  of  one  belligerent  should 
depart  from  a  neutral  port,  no  armed  vessel,  being  within  the 
same,  and  belonging  to  an  adverse  belligerent  power,  can  depart 
until  twenty-four  hours  after  the  former,  without  being  deemed 
to  have  violated  the  law  of  nations.  And  if  any  attempt  at  pur- 
suit be  made,  the  neutral  is  justified  in  resorting  to  force,  to 
compel  respect  to  the  sanctity  of  its  neutrality. 

§  17.  Passage  over  neutral  waters.  If  a  belligerent  cruiser, 
in  acting  offensively,  passes  over  a  portion  of  water  within 
neutral  jurisdiction,  that  fact  is  not  usually  considered  such  a 
violation  of  the  territory  as  to  invalidate  an  ulterior  capture 
made  beyond  it.  Permission  to  pas^  over  territorial  portions 
of  the  sea  is  not  usually  required  or  asked,  because  not  supposed 


CH.  XXIL— RIGHTS  AND  DUTIES  OF  NEUTRALS.       237 

to  result  in  any  inconvenience  to  the  neutral  power.  For 
example,  in  a  war  between  England  and  Russia,  belligerent 
vessels  must  pass  the  sound  over  which  Denmark  claims  and 
exercises  imperial  rights.  So  in  a  war  between  France  and 
Russia,  armed  vessels  might  be  obliged  to  pass  through  the 
neutral  waters  of  the  Dardanelles  ;  but  in  neither  of  these  cases 
would  the  passage  be  deemed  a  violation  of  neutral  rights,  nor 
would  a  capture  by  either  power  be  invalidated  by  the  fact  of 
such  passage,  animo  capiendi,  to  the  place  where  his  right  of 
capture  could  be  exercised. 

§  18.  Municipal  laws  enforcing  neutrality.  The  municipal 
laws  of  a  state,  for  the  protection  of  the  integrity  of  its  soil  and 
the  sanctity  of  its  neutrality,  are  sometimes  even  more  stringent 
than  the  general  laws  of  war ;  the  right  of  a  sovereign  state  to 
impose  such  restrictions  and  prohibitions,  consistent  with  the 
general  policy  of  neutrality,  as  it  may  see  fit,  is  undeniable. 
And  all  acts  of  the  officers  of  a  belligerent  power  against  the 
municipal  law  of  the  neutral  state,  or  in  violation  of  its  policy, 
involves  that  government  in  responsibility  for  their  conduct. 

§  19.  Laws  of  the  United  States.  The  congress  of  the  United 
States  have,  by  statutes,  made  suitable  provision  for  the  support  and 
due  observance  of  the  rules  of  strict  neutrality  within  American 
territorial  jurisdiction.  By  the  law  of  June  5th,  1794,  revised 
April  20th,  1818,  it  is  declared  to  be  a  misdemeanor  for  any 
citizen  of  the  United  States,  within  the  territory  or  jurisdiction 
thereof,  to  accept  and  exercise  a  commission  to  serve  a  foreign 
prince,  state,  colony,  district,  or  people,  in  war,  by  land  or  by 
sea,  against  any  prince,  state,  colony,  district  or  people,  with 
whom  the  United  States  are  at  peace,  or  to  enlist,  or  enter  him- 
self, or  hire  or  retain  another  person  to  enlist,  or  enter  himself, 
or  to  go  beyond  the  limits  or  jurisdiction  of  the  United  States, 
with  intent  to  be  enlisted  or  entered  in  the  service  of  any 
foreign  prince,  state,  etc. ;  or  to  fit  out  and  arm,  or  to  increase 
and  augment  the  force  of  any  armed  vessel,  with  the  intent  that 
such  vessel  be  employed  in  the  service  of  any  foreign  power  at 


238        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

war  with  another  power,  with  whom  we  are  at  peace ;  or  to 
begin,  set  on  foot,  or  provide,  or  prepare,  the  means  for  any 
military  expedition,  or  enterprise,  against  the  territory  of  any 
foreign  prince,  or  state,  or  of  any  colony,  district,  or  people, 
with  whom  we  are  at  peace.  And  any  vessel,  or  vessels,  fitted 
out  for  such  purpose  is  made  subject  to  forfeiture.  The  Presi- 
dent of  the  United  States  is  also  authorized  to  employ  force  to 
compel  any  foreign  vessel  to  depart,  which,  by  the  law  of 
nations,  or  by  treaty,  ought  not  to  remain  within  the  United 
States,  and  to  employ  the  public  force  generally  in  enforcing  the 
observance  of  the  duties  of  neutrality  prescribed  by  law. 

§  20.  Laws  of  Great  Britain.  The  example  of  the  United 
States  was  followed  by  Great  Britain,  and  the  act  of  59  George 
III.,  chapter  sixty-nine,  commonly  called  the  foreign  enlistment 
act,  was  passed,  supplying  the  defect  of  former  laws,  and  extend- 
ing the  prohibition  to  those  who  entered  the  service  of  unac- 
knowledged, as  well  as  acknowledged,  states.  This  law  in  1828 
was  strictly  enforced  to  intercept  a  Portuguese  armament  fitted 
out  in  Plymouth ;  but  from  a  defect  of  its  provisions,  or  an 
indisposition  to  execute  them,  it  proved  a  dead  letter  in  pre- 
venting the  fitting  out  of  such  armaments  against  the  United 
States  in  the  war  of  1861. 

§  21.  Protection  of  property  in  neutral  territory.  It  is  not 
only  the  right  of  the  neutral  state  to  protect  the  property  of  the 
belligerents,  when  within  the  neutral  jurisdiction,  but  it  is  a 
part  of  the  duty  of  neutrality  to  defend  such  property  while 
under  neutral  protection,  and  to  punish  any  and  every  offense 
against  the  rights  of  neutrality,  even,  if  necessary,  by  a  resort 
to  force. 

§  22.  Restitution  of  property  captured  in  neutral  territory. 
Although  it  is  the  duty  of  a  belligerent  state  to  make  restitution 
of  the  property  captured  within  the  territorial  jurisdiction  of  a 
neutral  state,  yet  it  is  a  technical  rule  of  the  prize  court  to  re- 
store to  the  individual  claimant,  in  such  a  case,  only  on  the 
application  of  the  neutral  government  whose  territory  was  vio- 


iCff.  XXIL— RIGHTS  AND  DUTIES  OF  NEUTRALS.       239 

lated  in  effecting  the  capture.  Tliis  rule  is  founded  upon  the 
principle,  that  the  neutral  state  alone  has  been  injured  by  the 
capture,  and  that  the  hostile  claimant  has  no  right  to  appear,  for 
the  purpose  of  suggesting  the  invalidity  of  the  capture. 

§  23.  If  such  property  be  in  possession  of  neutral  But  if  the 
property  captured  in  violation  of  neutral  rights  comes  into  the 
possession  of  the  neutral  state,  it  is  the  right  and  duty  of  such 
state  to  restore  it  to  its  original  owners.  This  restitution  is 
generally  made  through  the  agency  of  the  courts  of  admiralty 
and  maritime  jurisdiction. 

§  24.  Decisions  in  the  United  States.  It  has  been  decided  by 
the  Supreme  Court  of  the  United  States  that  the  peculiar  juris- 
diction of  the  courts  of  the  neutral  government  to  inquire  into 
the  validity  of  captures  made  in  violation  of  the  neutral  immu- 
nity, will  be  exercised  only  for  the  purpose  of  restoring  the 
specific  property,  when  voluntarily  brought  within  the  territory, 
and  does  not  extend  to  the  infliction  of  vindictive  damages,  as 
in  ordinary  cases  of  maritime  injuries,  and  as  is  done  by  the 
courts  of  the  captor's  own  country.  The  punishment  to  be  im- 
posed upon  the  party  violating  the  municipal  statutes  of  the 
neutral  state,  is  a  matter  to  be  determined  in  a  separate  and 
distinct  proceeding.  The  court  will  exercise  jurisdiction,  and 
decree  restitution  to  the  original  owner,  in  case  of  capture  from 
a  belligerent  power,  by  a  citizen  of  the  United  States,  under  a 
commission  from  another  belligerent  power,  such  capture  being 
a  violation  of  neutral  duty ;  but  they  have  no  jurisdiction  on  a 
libel  for  damages  for  the  capture  of  a  vessel  as  prize  by  the 
commissioned  cruiser  of  a  belligerent  power,  although  the  vessel 
belong  to  citizens  of  the  United  States,  and  the  capturing  vessel 
and  her  commander  be  found  and  proceeded  against  within  the 
jurisdiction  of  the  court. 

§  25.  Purchases  in  foreign  ports.  In  the  case  of  capture  by 
an  armed  vessel,  fitted  out  in  the  ports  of  the  United  States,  in 
violation  of  our  neutrality,  the  claim  by  an  alleged  honce  fidei 
purchaser  in  a  foreign  port  was  rejected,  and  restitution  decreed 


240        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

to  the  original  owners.  It,  however,  was  decided  that  a  bonce 
fidei  purchaser,  without  notice,  in  such  a  case  is  entitled  to  be 
reimbursed  the  freight  which  he  may  have  paid  upon  the  cap- 
tured goods ;  and  that  an  innocent  neutral  carrier  of  such  goods, 
the  same  having  been  shipped  in  a  foreign  port,  is  entitled  to 
freight  out  of  the  goods. 

§  26.  K  condemned  in  captor's  country.  If  such  property, 
captured  iij  violation  of  neutral  immunity,  he  carried  infra 
prcesidia  of  the  captor's  country,  and  there  regularly  condemned 
in  a  competent  court  of  prize,  the  question  arises  whether  the 
coufts  of  the  neutral  state  will  exercise  jurisdiction,  and  restore 
such  property  to  the  original  owners.  If  the  property  be  found 
in  the  hands  of  the  original  wrong-doer,  it  will  be  restored  by 
the  court,  notwithstanding  a  valid  sentence  of  condemnation, 
properly  authenticated.  The  oifender's  touch  is  said  to  restore 
the  taint  from  which  the  condemnation  may  have  purified  the 
prize,  and  it  is  not  for  him  to  claim  a  right  springing  out  of  his 
own  wrong. 

§  27.  In  cases  of  illegal  equipment  and  outfit  Illegal  equip- 
ment and  outfit,  in  violation  of  neutral  immunity,  will  not 
effect  the  validity  of  captures  made  after  the  cruise,  to  which 
the  outfit  had  been  applied  is  actually  terminated.  The  offense 
is  deemed  to  be  deposited  at  the  termination  of  the  voyage,  and 
does  not  effect  future  transactions.  This  rule  would  result  from 
analogy  to  other  cases  of  violation  of  public  law,  and  has  been 
directly  announced  by  the  U.  S.  supreme  court. 


CHAPTER    XXIII. 

LAW  OF  SIEGES  AND  BLOCKADES. 

§  1.  No  intercourse  witli  a  place  besieged  or  blockaded.  It  is 
now  a  well  settled  principle  of  international  law  that  neutral 
trade  or  commerce  with  a  place  besieged  or  blockaded  is  abso- 
lutely prohibited.  This  is  an  exception  to  the  general  rule  of 
accustomed  intercourse  of  neutrals  with  either  of  the  parties  to 
a  war. 

§  2.  Authority  to  institute  sieges  and  blockades.  The  institu- 
tion of  a  siege  or  blockade,  is  a  high  act  of  sovereignty,  and 
must  proceed,  either  directly  from  the  government  of  the  state 
or  from  some  officer  to  whom  the  authority  has  been  expressly 
or  impliedly  delegated.  The  general  of  an  army,  or  the  com- 
mander of  a  fleet,  in  a  foreign  country,  or  on  a  distant  station, 
may  be  reasonably  presumed  to  carry  with  him  this  authority, 
as  the  exigencies  of  the  service  on  which  he  is  employed,  under 
the  varying  circumstances  of  the  war,  would  often  seem  to  re- 
quire its  exercise.  His  authority  in  such  cases,  is,  therefore, 
implied  from  the  nature  of  the  service. 

§  3.  Distinction  between  them.  A  dege  is  a  military  invest- 
ment of  a  place,  so  as  to  intercept,  or  render  dangerous,  all  com- 
munications between  the  occupants  and  persons  outside  of  the 
besieging  army ;  and  the  place  is  said  to  be  hlockadedy  when 
such  communication  by  water,  is  either  entirely  cut  off  or  ren- 
dered dangerous  by  the  presence  of  the  blockading  squadron. 
A  place  may  be  both  besieged  and  blockaded  at  the  same  time, 
or  its  communication  by  water  may  be  intercepted,  while  those 
by  land  may  be  left  open,  and  vice  versa.     The   object  of  a 

21  2  F  241 


242        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

blockade  is  solely  to  distress  the  enemy,  intercepting  his  com- 
merce with  neutral  states.  It  does  not,  generally,  look  to  the 
surrender  or  reduction  of  the  blockaded  port,  nor  does  it  neces- 
sarily imply  the  commission  of  hostilities  against  the  inhabi- 
tants of  the  place.  The  object  of  a  military  siege  is,  on  the 
other  hand,  to  reduce  the  place  by  capitulation,  or  otherwise, 
into  the  possession  of  the  besiegers.  It  is  by  the  direct  appli- 
cation of  force,  that  this  object  is  sought  to  be  attained,  and  it 
is  only  by  forcible  resistance  that  it  can  be  defeated.  Hence, 
every  besieged  place  is,  for  the  time,  a  military  post ;  for  even 
when  it  is  not  defended  by  a  military  garrison,  its  inhabitants 
are  converted  into  soldiers  by  the  necessities  of  self-defense. 
This  distinction  is  not  merely  nominal,  but,  as  will  be  shown 
hereafter,  leads  to  important  consequences  in  determining  the 
rights  of  neutral  commerce,  and  in  deciding  questions  of 
capture. 

§  4.  Constructive  or  paper  blockades.  A  Gonstructive,  or,  as  it 
is  sometimes  called,  a  paper  blockade,  is  one  established  by 
proclamation,  without  the  actual  presence  of  an  adequate  force 
to  prevent  the  entrance  of  neutral  vessels  into  the  port  or  ports 
so  pretended  to  be  blockaded.  In  other  words,  it  is  an  attempt 
on  the  part  of  one  belligerent,  by  mere  proclamation  and  with- 
out possessing,  or  if  possessing,  without  using  the  means  of  es- 
tablishing a  real  blockade,  to  close  the  port  or  ports  of  the 
opposite  belligerent  to  neutral  commerce. 

§  5.  Ancient  text-writers  and  treaties.  The  ancient  text-writ- 
ers all  agree,  that  a  blockade  which  does  not  really  exist,  but  is 
merely  declared  by  proclamation,  is  not  sufficient  to  render  com- 
mercial intercourse  unlawful  on  the  part  of  neutrals.  Grotius 
forbids  the  carrying  of  anything  to  "a  town  actually  invested, 
or  a  port  closely  blockaded;"  and  Bynkershoek  evidently  con- 
curred with  Grotius,  in  requiring  a  strict  and  actual  siege  or 
blockade,  such  as  where  a  town  is  actually  invested  with  troops 
or  a  port  closely  blockaded  by  ships  of  war,  (oppidum  ohsessiim, 
porhis  clausos.)     This  is  shown  from  his   remarks  upon   the 


CH,  XXIIL—LAW  OF  SIEGES  AND  BLOCKADES.        243 

various  decrees  of  the  states-general.  The  same  principle  was 
embodied  in  the  early  treaties. 

§  6.  In  the  wars  of  Napoleon,  But  in  the  wars  of  Napoleon, 
England  and  France  resorted  to  mere  paper  blockades,  seeking 
in  this  way  to  utterly  destroy  neutral  commerce.  The  United 
States  and  other  neutral  powers  earnestly  protested  against  thLs 
violation  of  the  law  of  nations. 

§  7.  Declarations  of  1854  and  1856.  At  the  commencement  of 
the  war  between  the  allies  and  Russia,  in  1854,  France  and 
England  declared  their  intention  to  "maintain  the  right  of  a 
belligerent  to  prevent  neutrals  from  breaking  any  effective  block- 
ade which  may  be  established  with  an  adequate  foree  against 
the  enemy^s  ports,  harbors,  or  coasts."  This  declaration  was  a 
virtual  concession  on  the  part  of  these  powerful  maritime  nations 
of  the  illegality  of  constructive  or  paper  blockades,  for  which 
they  had  formerly  contended ;  but  it  was  regarded  as  defective, 
in  not  further  defining  what  should  constitute  an  effeet'we  block- 
ade, or  an  adequate  blockading  force.  Moreover,  the  declara- 
tion was  in  form  a  mere  temporary  order,  and  not  as  a  recog- 
nized and  subsisting  law  of  nations.  But  the  declaration  of 
the  plenipotentiaries  of  France,  Great  Britain,  Russia,  Austria, 
Prussia,  Sardinia  and  Turkey,  on  the  16th  of  April,  1856,  at 
the  conference  at  Paris,  removed  all  doubt  on  this  point,  by  an- 
nouncing in  the  fourth  proposition  or  principle,  that  "Block- 
ades, in  order  to  be  binding,  must  be  effective ;  that  is  to  say, 
maintained  by  a  foree  sufficient  really  to  prevent  access  to  the  coast 
of  the  enemy  y 

§  8.  These  simply  affirm  former  rule.  These  declarations  are 
regarded  as  simply  affirming  the  former  rule,  it  being  held  that 
the  words  "prevent  access  to,"  etc.,  are  equivalent  to  the  phrases 
"  render  it  dangerous  to  enter, ^^  etc. 

§  9.  De  facto  and  public  blockades.  Blockades  are  divided, 
by  English  and  American  publicists,  into  two  kinds :  1st,  a 
simple  or  de  facto  blockade,  and  2d,  a  public  or  governmental 
blockada     A  simple  or  de  facto  blockade  is  constituted  merely 


244       INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

by  the  fact  of  an  investment,  and  without  any  necessity  of  a 
public  notification.  As  it  arises  solely  from  facts,  it  ceases  when 
they  terminate ;  its  existence  must,  therefore,  in  all  •  cases,  be 
established  by  clear  and  decisive  evidence.  The  burden  of 
proof  is  thrown  upon  the  captors,  and  they  are  bound  to  show 
that  there  was  an  actual  blockade  at  the  time  of  the  capture. 
If  the  blockading  ships  were  absent  from  their  stations  at  the 
time  the  alleged  breach  occurred,  the  captors  must  prove  that  it 
was  accidental,  and  not  such  an  absence  as  would  dissolve  the 
blockade.  A  public,  or  governmental  blockade,  is  one  where 
the  investment  is  not  only  actually  established,  but  where  also 
a  public  notification  of  the  fact  is  made  to  neutral  poAvers  by 
the  government,  or  officers  of  state,  declaring  the  blockade. 
Such  notice  to  a  neutral  state  is  presumed  to  extend  to  all  its 
subjects ;  and  a  blockade  established  by  public  edict  is  presumed 
to  continue  till  a  public  notification  of  its  expiration.  Hence 
the  burden  of  proof  is  changed,  and  the  captured  party  is  now 
bound  to  repel  the  legal  presumptions  against  him  by  unequi- 
vocal evidence. 

§  10.  Temporary  absence  of  blockading  force  produced  by  acci- 
dent. The  only  exception  to  the  general  rule  which  requires 
the  aetual  presence  of  an  adequate  force  to  constitute  a  legal 
blockade,  is  the  temporary  absence  of  the  blockading  squadron 
produced  by  accident,  as  in  the  case  of  a  storm.  Such  acci- 
dental removal  of  blockading  force,  if  it  be  only  for  a  very  short 
time,  does  not  suspend  the  legal  operation  of  the  blockade.  An 
attempt  to  take  advantage  of  such  an  accidental  removal,  is 
regarded  as  a  fraudulent  attempt  to  break  the  blockade. 
But  if  the  blockading  force  should  be  so  scattered  or  injured 
by  the  storm,  as  to  be  unable  to  resume  their  stations  without 
repairs,  and  within  a  reasonable  time,  the  blockade  will  be 
considered  as  terminated,  in  the  same  manner  as  if  the  block- 
ading squadron  had  been  driven  away  by  a  superior  force  of  the 
enemy. 

§  11.  If  driven  away  by  force.    Where  the  blockading  squa- 


CH,  XXIIL—LAW  OF  SIEGES  AND  BLOCKADES.        245 

dron  is  driven  away  from  its  station  by  a  superior  force  of  the 
enemy,  the  interruption  operates  as  a  legal  discontinuance  of  the 
blockade,  and  on  its  renewal,  the  same  measures  are  necessary 
to  bring  it  to  the  knowledge  of  neutrals,  either  by  public  declara- 
tion or  by  the  notoriety  of  the  fact,  as  were  legally  requisite 
when  it  was  first  established.  It  is,  in  effect,  a  new  blockade, 
and  not  the  continuance  of  the  old  one. 

§  12.  If  removed  for  other  duty.  A  blockade  is  dissolved  by 
the  removal  of  the  blockading  force  for  a  different  service, 
although  the  removal  should  be  a  temporary  one.  Even  where 
only  a  portion  of  the  force  is  ordered  away,  the  legal  effect  is 
the  same,  unless  that  the  force  that  is  left  is  competent,  by  itself, 
to  maintain  and  enforce  the  blockade,  by  its  ability  to  prevent 
all  communications. 

§  13.  If  blockade  be  irregularly  maintained,  A  blockade  is 
also  dissolved  by  repeated  instances  of  an  improper  relaxation 
of  the  application  of  the  blockading  force  to  the  purposes  in- 
tended. The  mere  presence  of  an  adequate  force  is  not  suffi- 
cient to  constitute  and  maintain  a  blockade,  but  its  application 
must  be  constant  and  uniform,  to  prevent  all  communication 
with  the  port  it  incloses.  If,  through  motives  of  civility,  or 
other  considerations,  it  should  allow  ships,  not  privileged  by 
law,  to  enter  or  depart,  the  irregularity  may  be  justly  held  to 
vitiate  the  blockade,  as  it  necessarily  tends  to  deceive  other  par- 
ties. Where  some  are  suffered  to  pass,  others  will  have  a  right 
to  infer  that  the  blockade  is  raised.  To  justify  this  presump- 
tion, however,  there  must  be  repeated  instances  of  an  improper 
relaxation,  for  one  or  two  cases  would  hardly  be  deemed  suffi- 
cient to  warrant  the  belief  that  the  legal  restraint  on  neutral 
commerce  had  been  wholly  removed. 

§  14.  Effect  of  maritime  blockades  on  interior  communications. 
A  legal  blockade  can  only  exist,  where  its  actual  force  can  be 
applied;  hence  the  legal  effect  of  a  maritime  blockade,  not 
accompanied  by  a  military  investment  on  land,  applies  only  to 
a  direct  communication  by  sea,  and  to  vessels  sailing  from,  or 

21* 


246        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

immediately  destined  to,  the  blockaded  port,  and  cannot  be 
construed  to  prohibit  the  conveyance  of  articles  contraband  of 
war,  to  or  from  the  blockaded  port,  by  interior  communications. 
A  blockade  can  never  be  a  complete  investment  of  a  place, 
unless  its  force  can  be  applied  to  every  point  by  which  a 
communication  may  be  carried  on. 

§  15.  Of  a  siege  on  commuiiicatioiis  by  sea.  It  might  be  in- 
ferred, by  parity  of  reasoning,  that,  when  a  port  is  under  a 
military  siege,  neutral  commerce  might  still  be  lawfully  carried 
on  by  sea,  through  channels  of  communication  which  could  not 
be  obstructed  by  the  forces  of  the  besieging  army.  But  such 
inference  would  not  be  strictly  correct,  for  the  diiference 
between  a  blockade  and  a  siege,  in  their  character  and  object, 
have  led  to  a  difference  in  the  rules  applicable,  in  the  two 
cases,  to  neutral  commerce.  Although  the  legal  effect  of  a 
siege  on  land,  that  is,  a  purely  military  investment  of  a 
naval  or  commercial  port,  may  not  be  an  entire  prohibi- 
tion of  neutral  commerce,  yet  it  does  not  leave  the  ordinary 
communications  by  sea  open  and  unrestricted,  as  a  purely  mari- 
time blockade  leaves  the  interior  communications  by  land.  The 
primary  object  of  a  blockade  is,  as  we  have  already  said,  to  pro- 
hibit commerce;  but  the  primary  object  of  a  siege  is,  the 
reduction  of  the  place.  All  writers  on  international  law 
impose  upon  neutrals  the  duty  of  not  interfering  with  this 
object. 

§  16.  Breach  of  blockade  a  criminal  act.  The  breach  of  a 
blockade  is  viewed,  in  all  cases,  as  a  criminal  act ;  this  necessa- 
rily implies  a  criminal  intent,  and  to  constitute  such  intent,  a 
knowledge  of  the  existence  of  the  blockade,  and  an  intention  to 
violate  it,  are  indispensable.  These  are  sometimes  a  presump- 
tion of  law  which  the  party  is  not  permitted  to  repel,  in  others, 
an  inference  more  or  less  probable,  but  in  many  cases,  they  must 
be  shown  by  positive  evidence.  Sometimes  one  will  be  pre- 
sumed, while  the  other  will  require  positive  proof. 

§  17.  Public  notification  charges  parties  with  knowledge.    It 


CH.  XXIIL—LAW  OF  SIEGES  AND  BLOCKADES.       247 

has  been  held  by  the  English  courts  of  admiralty,  that  the  noti- 
fication of  a  blockade  to  a  neutral  government,  is,  by  construc- 
tion of  law,  a  direct  personal  notice  to  each  inhabitant  of  that 
country,  and  that  he  cannot  be  allowed  to  aver  his  own  ignor- 
ance of  the  blockade,  or  otherwise  contradict  the  legal  presump- 
tion of  knowledge. 

§  18.  What  constitutes  a  public  notification.  A  question  may 
here  arise  as  to  what  constitutes  a  public  notification.  This  is 
usually  in  the  form  of  an  official  communication  from  the  bel- 
ligerent to  the  authorities  of  neutral  states.  It  may  be  a  notice 
that  a  certain  port  will  be  blockaded  on  and  after  a  certain  date, 
or  that  it  is  the  intention  of  the  belligerent  to  proceed  to 
blockade  certain  ports  or  harbors.  The  latter  form  being 
indefinite  as  to  time  would  require  a  subsequent  notice  of  the 
commencement  or  time  of  the  actual  blockade.  Sometimes 
several  notifications  are  given,  such  as  a  notice  of  intention,  a 
subsequent  notice  of  the  sailing  of  the  naval  forces  for  the  pur- 
pose of  carrjdng  that  intention  into  execution,  and  finally  a 
notice  of  the  actual  commencement  of  the  blockade.  The  two 
former  are  given  as  a  matter  of  courtesy,  for  the  information  of 
neutrals. 

§  19.  Effect  of  general  notoriety.  Instead  of  a  direct  official 
notification  to  a  neutral  government  of  the  establishment  of,  or 
intention  to  institute,  a  blockade  of  a  particular  port,  a  general 
notice  to  that  effect  is  sometimes  given  by  official  publication  in 
the  newspapers.  By  this  means  information  is  distributed 
among  the  mercantile  community  more  generally  and  expedi- 
tiously than  through  the  ordinary  channels  of  official  communi- 
cation with  the  neutral  government.  Thus,  where  the  vessel 
intercepted  is  destined  to  a  blockaded  port,  and  there  is  clear 
and  positive  proof  that  the  existence  of  the  blockade  was 
generally  known  at  her  port  of  departure  when  she  sailed, 
neither  the  master  nor  his  owners,  nor  the  shippers  of  the 
goods,  will  be  permitted  to  aver  their  personal  ignorance  of  that 
which  it  is  scarcely  possible  they  should  not  have  known,  or,  at 


248        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

any  rate,  by  due  inquiry  might  have  ascertained.  To  allow 
proof  of  personal  ignorance  in  such  a  case,  by  admitting  the 
affidavits  of  the  master  or  his  crew,  would  be  a  direct  invitation 
to  peijury  and  fraud. 

§  20.  Case  which  precludes  denial  of  knowledge.  Where  a 
neutral  vessel  is  intercepted  on  her  passage,  with  a  cargo  from  a 
blockaded  port,  and  the  cargo  is  proved  to  have  been  shipped 
after  the  blockade  had  commenced,  and  was  known  at  the  port, 
the  party  is  precluded  from  denying  his  knowledge  of  its  exist- 
ence. 

§  21.  When  presumption  of  knowledge  may  be  rebutted.  There 
are  many  cases  where  the  inference  of  a  knowledge  of  the 
blockade  is  so  probable  as  to  create  a  strong  presumption,  but  a 
presumption  not  entirely  conclusive,  and  which  may  be  repelled 
by  unimpeached  and  positive  proof.  In  all  cases  of  this  kind, 
where  the  presumption  of  knowledge  is  not  absolute  and  con- 
clusive, the  neutral  claimant  is  allowed  to  prove  his  own  inno- 
cence. And  the  captor  can  judge  from  the  nature  and  circum- 
stances of  each  particular  case,  whether  the  neutral  vessel  is 
acting  in  good  faith,  and  is  really  ignorant  of  the  existence  of 
the  blockade,  or  whether  the  pretended  ignorance  is  a  mere  fraud- 
ulent attempt  to  deceive. 

§  22.  Proof  of  actual  knowledge  or  warning.  Where  there 
are  no  legal  or  probable  grounds  for  imputing  to  the  master  of 
a  neutral  vessel  the  knowledge  of  the  existence  of  a  blockade 
which  he  is  charged  to  have  violated,  it  rests  upon  the  captor 
to  establish  the  fact  of  this  knowledge  by  positive  evidence.  To 
warrant  a  condemnation,  the  proof  must  be  clear  and  definite 
that  such  vessel  had  been  duly  notified  of  the  blockade,  and  had 
undertaken  or  prosecuted  the  voyage  in  defiance  of  the  notice 
or  warning. 

§  23.  Attempt  to  enter  a  blockaded  port.  An  actual  entrance 
into  a  blockaded  port  is,  by  no  means,  necessary  to  render  a 
neutral  ship  guilty  of  a  violation  of  the  blockade.  Indeed,  such 
a  construction  would  essentially  defeat  the  very  object   of  a 


CH.  XXIII.—LAW  OF  SIEGES  AND  BLOCKADES.        249 

blockade,  by  rendering  the  capture  of  a  ship  lawful,  only  after 
such  capture  had  ceased  to  be  possible.  Hence  it  is  universally 
held  that  an  attempt  to  enter  the  port,  knowing  it  to  be  block- 
aded, completes  the  oifense  to  which  the  penalty  of  the  law  is 
attached. 

§  24.  Inceptioii  of  voyage.  Several  continental  writers  of  au- 
thority contend  that  the  inception  of  a  voyage  for  a  blockaded 
port,  with  a  knowledge  of  the  existence  of  the  blockade,  is  not 
such  an  offense  as  to  render  the  vessel  subject  to  seizure  upon 
the  high  seas.  Indeed,  they  regard  such  seizure  as  a  violation 
of  the  liberty  of  the  seas  and  of  the  independence  of  the  sov- 
ereign state  to  which  the  vessel  belongs.  But  English  and 
American  publicists  have  generally  held,  and  the  decisions  of 
British  and  American  courts  of  admiralty  seem  to  sustain  the 
opinion,  that  the  inception  of  the  voyage,  ^vith  a  knowledge  of 
the  blockade,  and  the  intention  to  enter,  is  sufficient  in  law  to 
constitute  the  offense  and  incur  penalty,  and  that  the  intention 
will  be  presumed  from  the  fact  of  commencing  the  voyage  with 
knowledge  of  the  existence  of  the  blockade. 

§  25.  Distant  voyages.  But  this  general  rule  is  subject  to 
some  important  exceptions,  or  rather  the  inference,  from  the  in- 
ception of  the  voyage  with  knowledge  of  the  blockade,  of  in- 
tention to  violate  it,  may,  in  some  cases,  be  removed  by  proof  to 
the  contrary.  Thus,  where  the  vessel  sails  from  a  distant  coun- 
try, she  may  clear  with  a  provisional  destination  to  the  block- 
aded port,  without  incurring  the  penalty  of  a  breach  of  the 
blockade,  provided  it  be  clearly  and  positively  proved  that  she 
intended  to  proceed  to  the  blockaded  port  only  in  case  she  as- 
certained, by  due  inquiry,  during  the  voyage,  that  the  blockade 
had  been  raised. 

§  26.  The  case  of  de  facto  blockades.  "  It  seems  a  just  infer- 
ence from  the  decisions,"  says  Mr.  Duer,  "  that  where  the  block- 
ade has  been  constituted  simply  by  the  fact  of  an  investment, 
although  its  existence  was  known  at  the  port  of  departure,  pre- 
vious to  the  sailing  of  the  neutral  ship,  she  may  clear  out,  pro- 

2  G 


250        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

visionally,  for  the  blockaded  port;  but  that,  in  this,  as  in 
former  cases,  the  inquiry  upon  the  result  of  which  the  right  to 
complete  the  voyage  must  depend,  must  be  made  at  a  port  of 
the  blockading  state,  or  of  a  neutral  power.  I  see  no  reason  to 
doubt  that  the  prohibition  to  proceed  to  the  mouth  of  the  block- 
aded port  embraces  all  cases  of  a  previous  knowledge,  from 
whatever  source  the  knowledge  may  have  been  derived;  and 
that,  in  all,  its  violation  is  subject  to  the  same  penalty." 

§  27.  When  presumption  of  intention  to  enter  cannot  be  re- 
pelled There  are  other  cases  where  the  criminal  intent  to  vio- 
late a  blockade  is  deduced  from  the  facts  existing  at  the  time  of 
capture,  and  forming  a  presumption  which  the  i^arty  is  not  per- 
mitted to  rej3el  by  his  own  denial.  Thus,  vessels  though  not 
ostensibly  destined  to  the  blockaded  port,  cannot  innocently 
place  themselves  in  a  situation  that  would  enable  them  to  vio- 
late the  blockade  at  their  pleasure.  Even  when  they  are  bound, 
by  their  papers  to  different  ports,  their  suspicious  approxima- 
tion to  that  under  blockade  will  subject  them  to  condemnation. 

§  28.  Neutral  vessel  entering  in  ballast.  For  a  neutral  ship  to 
enter  a  blockaded  port,  is  altogether  unlawful.  If  she  entered 
with  a  cargo,  the  legal  presumption  is,  that  she  went  in  with  the 
fraudulent  intention  of  delivering  it,  and  if  she  come  out  again 
without  delivering  it,  that  fact  will  not  remove  the  presumption, 
because  some  change  of  circumstance  may  have  altered  that  in- 
tention. If  she  entered  in  ballast,  it  is  to  be  presumed  that  she 
went  in  for  the  purpose  of  bringing  away  property,  and,  for  the 
same  reason  as  above,  her  egress,  still  in  ballast,  will  not  oust 
that  presumption. 

§  29.  Declarations  of  master.  We  have  already  stated  that 
any  attempt  to  enter  a  blockaded  port,  after  due  information  or 
warning,  subjects  the  party  to  the  penalty  of  the  law ;  "  but, 
whether  the  mere  declarations  of  the  master,  when  detained  and 
warned  by  a  ship  of  the  blockading  force,  of  his  intention  to 
persist  in  the  voyage,  notwithstanding  the  warning,  is  to  be 
considered  as  evidence  of  an  actual  attempt,  justifying  an  im- 


CH.  XXIII.—LAW  OF  SIEGES  AND  BLOCKADES.        251 

mediate  capture,  is  exceedingly  doubtful/'  The  mere  hasty- 
expressions  of  the  master,  resulting  from  resentment  and  sur- 
prise, certainly  ought  not  to  produce  the  condemnation  of  pro- 
perty entrusted  to  his  care. 

§  30.  Delay  in  obeying  warning.  Although  the  declaration 
of  the  master,  during  his  detention,  will  not  constitute  in  itself 
sufficient  cause  for  condemnation,  his  subsequent  conduct,  either 
with  or  without  such  declaration,  may  determine  the  lawful- 
ness of  his  capture.  It  is  his  duty,  on  being  duly  warned,  to 
alter  the  course  of  his  voyage,  as  soon  as  he  is  at  liberty  to  re- 
sume it,  and  to  depart  at  once  from  the  vicinity  of  the  blockaded 
port. 

§  31.  Disregard  of  warning.  If  the  master  persist  in  his 
voyage  to  a  blockaded  port,  in  defiance  of  a  sufficient  and  legal 
warning,  no  excuse  is  ever  admitted  for  his  conduct,  and  the 
ship  and  cargo  are  invariably  condemned.  "  His  misconduct 
may,  in  no  degree  be  imputable  to  his  owners,  yet  their  inno- 
cence affords  no  protection  to  their  property.  His  acts  may  be 
in  direct  violation  of  their  express  instructions,  may  even 
amount  to  fraud  or  barratry ;  yet  his  owners  will  continue  to  be 
bound  by  their  legal  consequences,  to  the  same  extent  as  if  they 
had  been  performed  under  their  previous  sanction  and  authority. 
Indeed  the  rule,  so  far  as  relates  to  the  ship,  and  the  property 
of  its  owners,  is  universal,  that  they  are  concluded  by  the  acts 
of  the  master  He  is  their  agent,  and  the  property  they  have 
entrusted  to  his  care  is,  in  all  cases,  responsible  for  his  just  ob- 
servance of  the  duties  of  neutrality." 

§  32.  When  ingress  is  excused.  There  are  but  few  cases  where 
the  entrance  of  a  vessel  into  a  blockaded  port,  or  an  attempt  to 
enter,  is  ever  justified  or  excused.  A  license  from  the  govern- 
ment of  the  blockading  state  to  enter  the  blockaded  port  is 
always  sufficient  justification,  and,  as  will  be  shown  hereafter, 
all  such  licenses  are  to  be  liberally  construed.  But  a  general 
license  to  enter  the  port  before  the  blockade  would  not  be  avail- 
able after  it  had  commenced ;  to  constitute  a  sufficient  protec- 


252        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

tion  it  must  authorize  the  vessel  to  enter  the  port  as  one  block- 
aded. Again,  a  physical  necessity,  arising  from  the  immediate 
need  of  water,  or  provisions,  or  repairs,  produced  by  stress  of 
weather,  which  leave  no  other  alternative  for  safety. 

§  33.  Violation  of  blockade  by  egress.  As  a  general  rule  the 
egress  of  a  ship,  during  blockade,  is  regarded  as  a  violation 
of  the  blockade,  and  renders  her  liable,  in  the  first  instance,  to 
seizure,  and  to  exempt  her  from  condemnation  the  most  satis- 
factory proof  is  required  to  be  given. 

§  34.  When  egress  is  allowed.  There  are  a  number  of  cases 
in  which  the  egress  of  the  neutral  vessel,  during  a  blockade,  is 
justified  or  excused:  Firsts  If  the  ship  is  proved  to  have  been 
in  the  blockaded  port  when  the  blockade  was  laid,  she  may 
retire  in  ballast,  for  such  egress  affords  no  aid  to  the  commerce 
of  the  enemy,  and  has  no  tendency  to  defeat  any  legitimate 
purpose  for  which  the  blockade  was  established.  Second,  If 
the  ingress  was  from  physical  necessity,  arising  from  stress  of 
weather,  and  the  immediate  need  of  water,  or  provisions,  or 
repairs.  Third,  Where  the  entrance  of  a  cargo  was  authorized 
by  a  license,  such  license  is  construed  to  authorize  the  return 
of  the  ship  with  a  cargo.  Fourth,  Where  a  neutral  ship,  arriv- 
ing at  the  entrance  of  a  blockaded  port,  in  ignorance  of  the 
blockade,  is  suffered  to  pass,  there  is  an  implied  permission  to 
enter,  which  fully  protects  her  egress.  But  this  implied  permis- 
sion does  not,  of  necessary  consequence,  protect  the  cargo,  for  its 
owners  may  be  guilty  of  a  criminal  violation  of  the  blockade 
even  where  the  ship  is  innocent.  Fifth,  A  neutral  sliip,  whose 
entry  into  the  blockaded  port  was  lawful,  is  permitted  to  return 
wdth  her  original  cargo  that  has  been  found  unsaleable,  and  re- 
shipped  during  the  blockade.  Sixth,  '^ Another,  and  a  very  equi- 
table exception,"  says  Duer,  "  is  allowed  in  favor  of  a  neutral 
ship  that  leaves  the  port  in  the  just  expectation  of  a  war  between 
her  own  country  and  that  to  which  the  blockaded  port  belongs." 

§  35.  Penalty  for  breach  of  blockade.  "  No  rule  in  the  law 
of  nations,"  says  Duer,  "  is  more  certainly  and  absolutely  estab- 


CB.  XXIIL—LAW  OF  SIEGES  AND  BLOCKADES,        253 

lished,  than  that  the  breach  of  a  blockade  subjects  all  the  pro- 
perty, so  employed,  to  confiscation  by  the  belligerent  power  whose 
rights  are  violated.  Among  all  the  contradictory  positions  that 
have  been  advanced  on  the  law  of  nations,  this  principle  has 
never  been  disputed.'' 

§  36.  When  cargo  is  exempted  from  condemnation.  But  if  it 
be  clearly  established,  by  proofs  found  on  board  at  the  time  of 
the  capture,  that,  at  the  inception  of  the  voyage,  the  owners  of 
the  cargo  stood  clear,  even  from  a  possible  intention  of  fraud, 
their  property  will  be  excepted  from  the  penal  consequences  of 
the  breach  of  the  blockade.  Thus,  where  the  illegality  consists 
in  the  misconduct  of  the  master  in  attempting  to  enter  a 
blockaded  port,  if  it  be  certain  that,  when  the  voyage  com- 
menced, the  existence  of  the  blockade  neither  was,  nor  could 
have  been,  known  at  her  port  of  departure,  the  owners  of  the 
cargo  could  not  possibly  have  contemplated  a  breach  of  the 
blockade. 

§  37.  Duration  of  offense.  "  To  justify  a  capture  for  the 
violation  of  a  blockade,"  says  Duer,  "  or  the  attempt  to  violate 
it,  the  oifense  must  continue  to  exist  at  the  time  of  seizure. 
In  technical  language,  the  ship  must  be  then  in  delicto.  In 
cases  where  the  ship  has  violated  the  blockade  by  egress,  the 
delictum  continues  during  her  whole  voyage,  till  she  has  reached 
her  final  port  of  destination.  But  when  a  ship  sails  for  a 
blockaded  port,  with  a  knowledge  of  the  blockade,  and  the 
intention  to  violate  it,  the  offense  is  so  far  complete  as  to  justify 
her  immediate  capture ;  yet,  as  it  exists  only  in  an  attempt,  the 
delictum  does  not  necessarily  continue  during  the  whole  of  her 
subsequent  voyage.  If,  previous  to  her  capture,  the  blockade 
had  ceased  to  exist,  or  the  master,  from  the  information  of  a 
ship  of  war  of  the  blockading  state,  had  just  grounds  for  be- 
lieving that  such  was  the  fact,  or  had  altered  his  destination, 
with  the  intention  of  not  proceeding  at  all  to  the  blockaded 
port,  the  offense  no  longer  exists,  and  that  which  had  existed  is 
no  longer  punishable.     To  constitute  the  offense,  three  circum- 

22 


254        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

stances  must  be  found  to  coexist.  The  fact  of  a  blockade,  the 
party^s  knowledge  of  its  existence,  and  his  intention  to  violate 
it,  and  in  each  of  the  above  cases,  an  indispensable  circumstance 
is  wanting.  The  delictum^  therefore,  at  the  time  of  capture,  had 
wholly  ceased,  and  both  ship  and  cargo  will  be  restored." 


CHAPTEE    XXiy. 

CONTRABAND  OF  WAR. 

§  1.  Definition  of  contraband.  The  term  contraband  {contra- 
bandurriy  or  contra  hannum)  has  been  used  from  time  immemorial 
to  express  a  prohibition  of  certain  kinds  of  commerce.  By  this 
term  we  now  understand  a  class  of  articles  of  commerce  which 
neutrals  are  prohibited  from  furnishing  to  either  one  of  the 
belligerents,  for  the  reason  that,  by  so  doing,  injury  is  done  to 
the  other  belligerent.  To  carry  on  this  class  of  commerce  is 
deemed  a  violation  of  neutral  duty,  inasmuch  as  it  necessarily 
interferes  with  the  operations  of  the  war  by  furnishing  assis- 
tance to  the  belligerent  to  whom  such  prohibited  articles  are 
supplied. 

§  2.  Contraband  articles,  confiscated.  There  is  no  difference 
of  opinion  with  respect  to  the  general  rule  which  prohibits  trade 
in  articles  contraband  of  war,  whatever  may  be  the  extent  of 
disagreement  with  respect  to  what  articles  may  properly  be 
regarded  as  contraband.  The  noxious  articles  themselves,  (if 
decided  to  be  contraband,)  are  invariably  condemned,  and  no 
defense  or  plea  can  save  them  from  confiscation,  when  their 
character  as  contraband,  and  their  destination  to  a  hostile  port 
or  country,  are  admitted  or  established.  Nevertheless,  it  may 
be  possible  to  deduce  from  these  apparently  conflicting  decisions 
of  courts  of  admiralty,  some  general  principle  which  may  form 
the  basis  of  the  rule  of  international  law,  with  respect  to  the 
carriage  of  such  prohibited  articles. 

§  3.  Ancient  rule  in  regard  to  ships.  By  the  ancient  laws  of 
war,  as  established  by  the  usages  of  European  nations,  the  con- 

255 


256        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

traband  cargo  affected  the  ship,  and  involved  it  in  the  sentence 
of  condemnation.  The  justice  of  this  rule  is  vindicated  by 
Bynkershoek  and  Heineccius,  and  it  cannot  be  said  that  the 
penalty  was  unjust  in  itself,  or  unsupported  by  the  analogies  of 
the  law. 

§  4.  Modern  rule.  By  the  modern  practice  of  the  prize  courts 
of  England  and  the  United  States,  and  not  opposed  it  is 
believed,  by  other  nations,  a  milder  rule  has  been  adopted,  and 
the  carrying  of  articles  contraband  of  war  is  now  attended  only 
with  the  loss  of  freight  and  expenses,  except  where  the  ships 
belong  to  the  owner  of  the  contraband  cargo,  or  where  the 
simple  misconduct  of  carrying  contraband  articles,  is  connected 
with  other  circumstances  which  extend  the  offense  to  the  ship 
also. 

§  5.  Cases  where  the  ship  also  is  condemned.  Where  the 
transportation  of  the  contraband  articles  is  prohibited  by  the 
stipulations  of  a  treaty,  to  which  the  government  of  the  neutral 
ship-owner  is  a  party,  the  forfeiture  of  the  freight  extended  to 
the  ship,  on  the  ground  that  the  criminality  of  the  act  is  en- 
hanced by  the  violation  of  the  additional  duty  imposed  by  the 
treaty.  An  attempt  to  conceal  the  destination  of  the  ship,  by 
false  papers,  will  lead  to  the  same  result. 

§  6.  Plea  of  Ignorance  or  force.  The  ordinary  penalty  of  carry- 
ing articles  contraband  of  war,  is  the  confiscation  of  the  goods 
and  the  loss  of  the  freight  and  expenses  to  the  ship.  This 
penalty  is  not  to  be  averted  by  the  allegation  that  the  owners  or 
master  were  ignorant  of  the  true  nature  of  the  articles,  or  that, 
by  the  threat  or  violence  of  the  enemy,  they  were  compelled  to 
receive  and  transport  them.  Such  excuses,  if  allowed,  would  be 
constantly  urged,  and  by  robbing  the  prohibition  of  contraband 
of  its  penal  character,  would  convert  it  into  a  mere  nugatory 
threat. 

§  7.  Inception  of  voyage  completes  offense.  The  inception  of 
the  voyage  is  held  to  complete  the  offense ;  and  from  the  moment 
that  the  vessel,  with  the  contraband  articles  on  board,  quits  her 


CH.  XXIV.— CONTRABAND  OF  WAR.  257 

port  on  a  hostile  destination,  the  capture  may  be  legally  made. 
It  is  by  no  means  necessary  to  wait  till  the  ship  and  goods  are 
actually  endeavoring  to  enter  the  enemy's  port.  The  voyage 
being  illegal  at  its  commencement,  the  penalty  immediately 
attaches,  and  continues  to  the  end  of  the  voyage,  or  at  least  so 
long  as  the  illegality  exists. 

§  8.  Return  voyage.  Where  the  contraband  goods  are  not 
taken  in  delicto ^  in  the  actual  prosecution  of  the  outward  voyage 
and  the  return  voyage  is  distinct  and  independent,  the  penalty 
is  not  generally  held  to  attach,  either  upon  the  proceeds  of  the 
goods  or  on  the  ship  upon  her  return  voyage.  But  where  they 
are  both  inseparably  connected  in  their  original  plan,  so  as  to 
form  parts  of  a  continuous  voyage,  the  penalty  is  generally 
considered  as  attaching  in  every  stage  till  its  final  comple- 
tion. 

§  9.  K  not  contraband  at  time  of  seizure.  It  must  be  observed 
that  the  offense  does  not  necessarily  continue  during  the  entire 
outward  voyage,  even  where  it  was  completed  by  the  mere  in- 
ception with  contraband  articles  on  board.  "  Where  there  is 
positive  evidence,''  says  Duer,  "that,  previous  to  the  capture, 
the  voyage  had  been  changed,  by  the  substitution  of  an  inno- 
cent port  of  destination,  or  that  the  original  port,  by  capitula- 
tion or  otlierwise,  had  ceased  to  be  hostile,  as  the  goods  were  not 
contraband  when  seized,  the  capture  is  invalid,  and  restitution 
is  decreed." 

§  10.  Transfer  from  one  port  to  another.  The  illegality  of  the 
transportation  of  contraband  goods  is  not  confined  to  an  original 
importation  into  an  enemy's  country.  The  transportation  of 
such  articles  from  one  port  to  another,  is  equally  unlawful, 
and  is  subject  to  be  treated  in  the  same  manner  as  an  original 
importation.  It  may  equally  and  as  directly  tend  to  assist  the 
enemy  in  the  prosecution  of  the  war. 

§  11.  If  for  enemy's  use  in  a  neutral  port.  In  order  to  consti- 
tute the  unlawfulness  of  the  transportation  of  contraband,  it  is 
not  necessary  that  the  immediate  destination  of  the  ship  and 
22  *  2  H 


258        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

cargo  should  be  to  an  enemy's  country  or  port.  If  the  goods 
are  contraband  and  destined  for  the  direct  use  of  the  enemy's 
army  or  navy,  the  transportation  is  illegal,  and  subject  to  the 
ordinary  penalty.  Thus,  if  an  enemy's  fleet  be  lying,  in  time 
of  war,  in  a  neutral  port,  and  a  neutral  vessel  should  carry  con- 
traband goods  to  that  port,  not  intended  for  sale  in  the  neutral 
market,  but  destined  to  the  exclusive  supply  of  the  hostile 
forces,  such  conduct  would  be  a  direct  interposition  in  the  war 
by  furnishing  essential  aid  in  its  prosecution,  and  consequently 
would  be  a  flagrant  departure  from  the  duties  of  neutrality. 

§  12.  Example  of  the  Conimercen.  During  the  war  in  the 
Spanish  peninsula,  while  Sweden  was  an  ally  of  England  as 
against  France,  but  neutral  in  regard  to  the  United  States  then 
at  war  with  England,  a  Swedish  vessel.  The  Commereen,  was  cap- 
tured in  the  act  of  carrying  supplies  to  the  British  forces  in  the 
peninsula.  The  Supreme  Court  of  the  United  States,  held  that 
the  voyage  was  illegal,  condemned  the  cargo,  and  denied  the 
neutral  carrier  his  freight. 

§  13.  Disagreement  as  to  what  particular  articles  are  contraband. 
There  is  a  great  diversity  of  opinion  among  writers  on  inter- 
national law  in  regard  to  what  particular  articles  are  to  be 
deemed  contraband  when  captured  en  route  to  an  enemy's  port 
or  destined  to  an  enemy's  use.  Opinions  have  varied  at  differ- 
ent periods,  and  even  those  of  the  same  period  are  not  always 
reconcilable  with  each  other. 

§  14.  Opinion  of  the  older  publicists.  Grotius  held  that  all 
articles  suitable  to  be  used  in  war  were  always  contraband ;  that 
those  useful  only  for  civil  purposes  were  never  contraband ;  and 
that  those  of  indiscriminate  use  in  peace  or  war,  might  or 
might  not  be  contraband,  according  to  the  particular  circum- 
stances of  the  war.  But  neither  Grotius  nor  his  followers  de- 
cided upon  what  particular  articles  belonged  to  each  of  these 
classses. 

§  15.  Of  modem  writers.  Nor  have  more  recent  writers,  as 
Kent,  Wheaton,  Duer,  Hautefeuille,  Ortolan,  Heffler,  Philli- 


CH.  XXIV.— CONTRABAND   OF  WAR.  259 

more,  Manning,  Twiss,  etc.,  been  able  to  agree  upon  this  point. 
Although  there  is  a  general  concurrence  of  opinion  in  regard  to 
the  principle  on  which  the  law  of  contraband  is  based,  there  is 
much  disagreement  in  respect  to  its  application. 

§  16.  Discordancy  of  earlier  treaties  and  ordinances.  And  the 
same  discordancy  in  the  definition  of  contraband  is  to  be  found 
in  the  conventional  law  of  nations,  as  established  by  treaties, 
the  provisions  of  which  are  various  and  contradictory, — even 
of  those  made,  at  different  periods,  between  the  same  nations. 
The  same  may  be  said  of  marine  ordinances  and  diplomatic 
discussions. 

§  17.  Of  those  of  more  recent  date.  More  recent  treaties,  con- 
ventions, and  local  ordinances  have  designated  as  contraband  of 
war  many  articles  not  known,  or  at  least  not  used  for  military 
purposes,  in  former  times;  and  in  all  probability  this  list  will 
be  continually  enlarged.  Nevertheless  there  is  much  disagree- 
ment in  regard  to  many  articles  so  used. 

§  18.  Decisions  of  prize  courts.  Again,  if  we  recur  to  the 
decisions  of  prize  courts,  although  we  shall  find  less  discordancy, 
perhaps,  than  in  the  other  sources  of  international  law,  we 
nevertheless  shall  encounter  a  diversity  of  sentiment  on  some 
points,  which  it  would  be  vain  to  attempt  to  reconcile.  Even 
in  the  same  country,  at  different  periods,  the  decisions  have  been 
various  and  contradictory. 

§  19.  There  is  no  positive  rule.  As  already  stated,  it  is  not 
our  present  intention  to  attempt  to  reconcile  conflicting  opinions 
and  decisions,  or  to  deduce,  from  any  process  of  reasoning,  the 
rules  of  an  universal  law  applicable  to  contraband  of  war.  But 
we  will  endeavor  to  state  what  has  been  decided  to  be  contra- 
band by  the  prize  courts  of  Europe  and  of  the  United  States, 
wherein  the  courts  are  generally  agreed,  and  wherein  they  have 
differed  in  opinion.  It  is,  perhaps,  of  as  much  importance  to 
know  what  has  been,  and  is  likely  to  be,  administered  as  the 
law,  in  the  courts  of  the  principal  commercial  states,  as  to  know 


260        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

what  ought,  in  theory,  to  be  established  as  the  conventional  law 
of  nations. 

§  20.  Munitions  of  war.  It  is  universally  admitted,  as  already 
remarked,  that  all  instruments  and  munitions  of  war  are  to  be 
deemed  contraband,  and  subject  to  condemnation.  This  rule 
embraces,  by  its  terms,  and  by  fair  construction,  all  ordnance 
and  arms  of  every  description,  balls,  shells,  shot,  gun- 
powder and  articles  of  military  pyrotechny,  gun-carriages, 
ammunition-wagons,  belts,  scabbards,  holsters,  all  military  equip- 
ments and  military  clothing.  Any  vessel,  evidently  built  for 
warlike  purposes,  as  gun  and  mortar-boats,  and  destined  to  be 
sold  for  such  use,  is  clearly  liable  to  confiscation  under  the  same 
rule.  To  this  list  is  to  be  added  all  articles,  manufactured  or 
unmanufactured,  which  are  almost  exclusively  used  for  military 
purposes,  as  machinery  for  manufacturing  arms,  and  saltpetre, 
and  sulphur  for  making  gunpowder. 

§  21.  Manufactured  articles.  It  is  an  established  doctrine  of  the 
English  admiralty,  that  all  manufactured  articles  that  in  their 
natural  state  are  fitted  for  military  use,  or  for  building  and 
equipping  ships  of  war,  such  as  masts,  spars,  rudders,  wheels, 
tillers,  sails,  sail-cloth,  cordage,  rigging,  arid  anchors,  are  con- 
traband in  their  own  nature,  to  the  same  extent  as  munitions 
of  war,  and  that  no  exception  is  admitted  in  their  favor,  unless 
created  by  express  provisions  of  a  treaty.  Since  the  introduc- 
tion of  steam,  as  a  motive  power,  in  ships  of  war,  the  British 
prize  courts  would  probably,  upon  the  same  principle,  condemn 
as  contraband  all  marine  engines,  screw  propellers,  cylinders, 
shafts,  boilers,  boiler  plates,  tubes,  fire-bars,  and  every  com- 
ponent part  of  a  marine  engine  or  boiler,  and  every  article 
suitable  for  the  manufacture  of  marine  machinery. 

§  22.  Unwrought  articles.  Articles  in  a  rough  state,  which 
may  be  used  for  military  and  naval  purposes,  may,  or  may  not, 
be  contraband,  according  to  their  nature  and  destined  use,  as 
inferred  from  their  immediate  destination.  Thus,  pitch,  tar,  and 
hemp,  destined  to  the  enemy's  use,  are  generally  held  to  be  con- 


CH.  XXIV.— CONTRABAND   OF  WAR.  261 

traband  in  their  nature,  but  where  they  are  the  produce  of  the 
neutral  country  from  which  they  are  exported,  and  are  the 
property  of  its  subjects  or  citizens,  they  are  exempt  from  con- 
fiscation, except  when  they  are  exclusively  and  immediately 
destined  to  warlike  use.  Ship-timber,  in  a  rough  state,  is  not 
in  se  contraband,  but  it  may  become  so  from  its  particular 
character,  as  masts  and  spars,  or  from  the  character  of  its  port 
of  destination.  Copper  is  not  generally  contraband,  but  if  in 
sheets,  adapted  to  the  sheathing  of  vessels,  it  is  condemned. 
Hemp  is  more  favorably  considered  than  cordage.  Rosin  is  not 
generally  contraband,  but  is  condemned  if  going  to  a  port  of 
naval  equipment.  Iron  itself  is  treated  with  indulgence,  but  if 
of  such  a  form  as  to  make  it  suitable  for  military  or  naval  pur- 
poses, and  its  immediate  destination  is  for  such  use,  it  cannot 
claim  the  benefit  of  exemption.  The  same  rule  would  probably 
be  applied  to  all  unwrought  materials  for  ship  building,  and  for 
the  construction  of  marine  machinery.  Since  the  introduction 
of  steam  as  the  motive  power  in  ships  of  war,  the  question  has 
been  much  discussed  in  Europe,  whether  coals  are  to  be  con- 
sidered as  contraband.  They  would  seem  now  to  properly 
belong  to  the  same  class  as  ship-timber,  tar,  pitch,  and  other 
unwrought  materials  for  ship  building  and  naval  stores. 

§  23.  Intended  use  deduced  from  destination.  The  probable 
use  of  articles  is  inferred  from  their  known  destination.  This 
rule  seems  neither  unjust  nor  unequal.  The  remarks  of  Chan- 
cellor Kent  on  this  point  are  exceedingly  clear  and  appropriate. 
"The  most  important  distinction,^'  he  says,  "is  whether  the 
articles  were  intended  for  the  ordinary  uses  of  life,  or  even  for 
mercantile  ship's  use,  or  whether  they  were  going  with  a  highly 
probable  destination  to  military  use.  The  nature  and  quality 
of  the  port  to  which  the  articles  are  going,  is  not  an  irrational 
test.  If  the  port  be  a  general  commercial  one,  it  is  presumed 
the  articles  are  intended  for  civil  use,  though  occasionally  a  ship 
of  war  may  be  constructed  in  that  port.  But,  if  the  great  pre- 
dominant character  of  that  port,  like  Brest  in  France,  or  Ports- 


262        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

mouth  in  England,  be  that  of  a  port  of  naval  military  equip- 
ment, it  will  be  presumed  that  the  articles  were  going  for  mili- 
tary use,  although  it  is  possible  that  the  articles  might  have 
been  applied  to  civil  consumption. 

§  24.  Provisions.  It  is  universally  admitted,  that  provisions 
[commeatus  belli)  are  not,  in  their  own  nature,  contraband.  But 
while  some  contend  that  they  never  can  become  so  under  any 
circumstances,  others  hold,  (and  such  is  the  uniform  practice  of 
the  British  admiralty,)  that  they  may  become  liable  to  condem- 
nation by  their  special  destination  and  intended  use.  When 
they  are  destined  to  the  immediate  supply  of  the  military  or 
naval  forces  of  the  enemy,  the  aid  thus  intended  to  be  given  for 
the  prosecution  of  the  war,  is  so  direct  and  important  that  the 
act  of  transportation  is  peculiarly  noxious,  and  they  are  con- 
demned without  hesitation. 

§  25.  Ancient  rule  of  preemption.  In  former  times  many  ar- 
ticles of  ambigui  usiis  were  not  confiscated^  but  subjected  to  pre- 
emptiouj  that  is,  converted  to  the  use  of  the  captor  and  paid  for 
at  a  fixed  price. 

§  26.  British  rule  of  preemption.  But  the  British  admiralty, 
and  especially  Sir  William  Scott,  went  much  further,  and  sus- 
tained the  capture  of  provisions  which  were  not  even  probably 
destined  to  military  use,  not,  indeed,  confiscating  as  contraband 
of  war  on  the  ground  of  their  being  ambigui  usus,  but  con- 
demning them  to  the  use  of  the  British  government,  on  the 
payment  of  a  price  equivalent  to  their  value,  or  rather,  their 
cost  and  the  specified  mercantile  profit  of  ten  per  cent.  A  simi- 
lar rule  of  preemption  was  applied  by  Great  Britain  to  certain 
native  commodities  of  neutral  states,  found  in  neutral  vessels,  and 
required  by  her  for  naval  purposes.  In  some  cases,  where  this 
rule  of  preemption,  or  pretended  right  of  purchase,  was  exer- 
cised, it  was  not  claimed  that  the  goods  so  captured  and  con- 
demned to  a  forced  sale,  were  contraband,  even  on  the  ground 
of  being  ambigui  usHs. 

§  27.  Contested  by  others.     The  arguments  adduced  in  favor 


CH.  XXIV.— CONTRABAND   OF  WAR.  263 

the  British  iright  of  preemption  failed  to  convince  its  opponents 
of  its  justness  or  legality,  and  its  enforcement  was,  at  the  time, 
most  strenuously  opposed  by  the  government  of  the  United 
States  and  the  neutral  powers  of  Europe.  Nor  did  this  oppo- 
sition cease  with  the  war  in  which  the  rule  had  originated,  or, 
at  least,  been  called  into  operation.  Since  then,  text-writers 
have  most  emphatically  denied  the  legality  of  the  rule,  and  suc- 
cessfully attacked  the  arguments  by  which  it  was  attempted  to 
be  defended. 


CHAPTER    XXY. 

RIGHT  OF  VISITATION  AND  SEARCH. 

§  1.  General  exemption  of  merchant  vessels  on  the  higli  seas. 
It  has  been  stated  in  a  preceding  chapter  that  every  merchant 
vessel  on  the  high  seas  is  regarded,  in  international  law,  as  a 
part  of  the  territory  of  the  state  to  which  it  belongs.  To  enter 
into  such  vessel,  or  to  interrupt  its  course,  by  a  foreign  power 
in  time  of  peace,  or  (it  being  neutral,)  by  a  belligerent  in  time 
of  war,  "is  an  act  of  force,  and  is,  prima  facie ,  a  wrong,  a  tres- 
pass, which  can  be  justified  only  when  done  for  some  purpose, 
allowed  to  form  a  sufficient  justification  by  the  law  of  nations." 

§  2.  Right  of  search  a  belligerent  right  only.  The  right  of 
search  upon  the  high  seas  is  now  universally  regarded  as  simply 
a  belligerent  right,  and  one  which  cannot  be  exercised  in  time 
of  peace,  except,  when  it  has  been  conceded  by  treaty. 

§  3.  Claim  of  England  to  visit  in  time  of  peace.  The  English 
government,  however,  at  one  time  attempted  to  draw  a  distinc- 
tion between  the  right  of  visit,  and  the  right  of  search,  and 
while  it  distinctly  disavowed  any  claim  to  exercise  the  latter  in 
time  of  peace,  it  insisted  upon  the  right  of  visit  for  the  pur- 
pose of  ascertaining  whether  a  merchant  vessel  is  justly  entitled 
to  the  protection  of  the  flag  which  she  may  happen  to  have 
hoisted,  such  vessel  being  in  circumstances  which  render  her 
liable  to  suspicion ;  the  right  "  to  know  whether  the  vessel  pre- 
tending to  be  American,  and  hoisting  the  American  flag,  be 
bona  fide  American." 

§  4.  Claim  denied  by  the  United  States.  "  The  government  of 
the  United   States,  on  the   other   hand,"   said   Mr.   Webster, 

264 


CIL  XXV.— RIGHT  OF  VISITATION  AND  SEARCH.      265 

*^  maintains  that  there  is  no  such  well  known  and  acknowledged, 
nor,  indeed,  any  broad  and  generic  difference  between  what  has 
been  usually  called  visit,  and  what  has  been  usually  called 
search ;  that  the  right  to  visit,  to  be  effectual,  must  come,  in  the 
end,  to  include  search ;  and  thus  to  exercise,  in  peace,  an  authority 
which  the  law  of  nations  only  allows  in  time  of  war." 

§  5.  Views  of  the  United  States  sustained  by  American  pub- 
licists. All  American  writers  on  public  law  sustained  the  ground 
taken  by  our  government  against  the  claim  of  England  to  visit 
in  time  of  peace.  Mr.  Wheaton  said,  "  The  distinction  now  set 
up,  between  a  right  of  visitation  and  a  right  of  search,  is 
nowhere  alluded  to  by  any  public  jurist,  as  being  founded  on 
the  law  of  nations.  The  technical  term  of  visitation  and  searcJi, 
used  by  the  English  civilians,  is  exactly  synonymous  with  the 
droit  de  visite  of  the  continental  civilians.'' 

§  6.  By  continental  writers.  The  older  continental  publicists, 
as  stated  by  Mr.  Wheaton,  do  not  distinguish  between  the  right 
of  visit,  and  the  right  of  search,  but  discuss  the  general  question 
under  the  terms  visit  and  visitation,  as  a  belligerent  right,  exist- 
ing only  in  time  of  war.  Several,  however,  who  have  written 
since  Mr.  Wheaton  made  the  statement  alluded  to,  have  dis- 
cussed the  claim  of  Great  Britain  to  the  right  of  visit  in  time  of 
peace,  as  distinguished  from  the  general  right  of  visitation  and 
search  in  time  of  war.  They  unanimously  oppose  the  British 
claim. 

§  7.  By  the  older  English  writers.  The  older  English  writers, 
and  English  judicial  decisions,  are  directly  opposed  to  the  pre- 
tensions of  Lord  Aberdeen,  and  generally  agree  with  the  conti- 
nental writers  on  this  question.  Lord  Stowell,  than  whom  no 
greater  authority  can  be  found  in  British  maritime  jurisprudence, 
says :  "  I  can  find  no  authority  that  gives  a  right  to  the  inter- 
ruption of  the  navigation  of  the  vessels  of  states  on  the  high 
seas,  except  that  which  the  rights  of  war  give  to  both  belliger- 
ents against  neutrals."  Again  he  says :  "  No  one  can  exercise 
the  right  of  visitation  and  search  upon  the  high  seas,  except  a 

23  2  1 


266        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

belligerent  power.  No  such  right  has  ever  been  claimed,  nor 
can  it  be  exercised  without  the  suppression,  interruption  and  the 
endangering  of  the  relations  with  and  the  lawful  navigation  of 
other  countries.  If  the  right  were  to  exist  at  all,  it  must  be 
universal  and  extend  equally  to  all  countries.  If  I  were  to 
proceed  to  consider  this  question  further,  it  would  be  necessary 
for  me  to  state  the  gigantic  mischiefs  which  such  a  claim  is  likely 
to  produce.'' 

§  8.  Origin  of  the  discussion.  This  discussion  between  the 
governments  of  Great  Britain  and  the  United  States,  or  more 
properly  speaking,  between  Lord  Aberdeen  and  Mr.  Webster, 
arose  out  of  the  pretensions  of  British  cruisers  on  the  coast  of 
Africa  to  visit  American  vessels  suspected  of  being  engaged  in 
the  slave  trade. 

§  9.  Its  final  settlement.  It  was  finally  terminated  by  the 
announcement  of  the  Earl  of  Malmesbury,  British  minister  of 
foreign  affairs,  in  the  house  of  lords,  on  the  26th  of  July,  1858, 
that,  on  receiving  the  unanimous  opinion  of  the  law  officers  of 
the  crown,  "  her  majesty's  government  at  once  acted,  and  we 
frankly  confessed  that  Ave  had  no  legal  claim  to  the  right  of 
visit  and  of  search  which  has  hitherto  been  assumed.  Her 
majesty's  government  have  therefore  abandoned  both  these 
claims." 

§  10.  Visitation  and  search  in  time  of  war.  The  right  of 
visitation  and  search,  in  time  of  war,  springs  directly  from  the 
right  of  maritime  capture;  for  without  the  former  we  must 
abandon  the  latter,  or  so  extend  it  as  to  authorize  the  indiscrimi- 
nate seizure  of  all  merchant  vessels  that  may  be  found  upon  the 
ocean ;  until  they  are  visited  and  searched,  it  would  be  impossi- 
ble to  know  whether  or  not  they  are  liable  to  capture,  either 
from  the  ownership  of  the  vessel,  the  nature  of  the  cargo,  or  the 
character  of  the  voyage. 

§  11.  English  views  as  to  extent  of  search.  While  all  are  now 
agreed  in  regard  to  the  belligerent  right  of  visitation  and  search, 
there  is  some  diversity  of  opinion  in  regard  to  the  extent  to 


CH.  XXV.— BIGHT  OF   VISITATION  AND  SEARCH.      267 

which  the  search  may  be  carried.  English  writers  have  always 
claimed  that  the  examination  may  properly  be  prosecuted  till 
the  belligerent  is  reasonably  satisfied  in  regard  to  the  character 
of  the  vessel,  its  cargo,  and  destination. 

§  12.  American  views.  American  writers  have  adopted  the 
same  views,  and  the  principle  has  been  established  by  numerous 
decisions  of  the  Supreme  Court  of  the  United  States. 

§  13.  Continental  writers.  But  many  of  the  continental 
writers  would  limit  the  search  to  an  examination  of  the  vessel's 
papers.  Others  say  that  if  these  are  found  to  be  incomplete  or 
irregular,  or  there  is  a  suspicion  of  fraud,  the  search  may  pro- 
ceed further ;  but  not  otlierwise. 

§  14.  Enforcement  of  the  right  of  search.  The  exercise  of 
this  right,  within  its  true  limits,  whatever  they  may  be,  implies 
the  right  of  using  lawful  force,  if  necessary,  in  its  execution,  the 
same  as  in  the  execution  of  a  civil  process  on  land.  The  right 
of  search  on  the  one  side,  implies  the  duty  of  submission  on  the 
other ;  and  as  the  belligerent  may  lawfully  apply  his  force  to 
the  neutral  property,  for  the  purpose  of  ascertaining  its  charac- 
ter and  destination,  it  necessarily  follows  that  the  neutral  may 
not  lawfully  resist  the  lawful  exercise  of  the  right  of  search. 

§  15.  It  must  he  exercised  in  a  lawful  manner.  But,  although 
it  is  the  duty  of  the  neutral  to  submit  to  the  lawful  search  of 
the  belligerent,  and  to  all  acts  that  are  necessary  to  accomplish 
that  object,  it  by  no  means  follows  that  the  belligerent  is  subject 
to  no  restraints  in  the  exercise  of  this  right.  It  is  not  sufficient 
that  the  right  is  lawful,  it  must  be  exercised  in  a  lawful  man- 
ner. The  right  is  limited  to  such  acts  as  are  necessary  to  a 
thorough  examination  into  the  real  character  of  the  vessel,  her 
cargo  and  voyage,  and  all  acts  that  transcend  the  limits  of  this 
necessity  are  unlawful.  For  any  improper  detention  of  the 
vessel,  or  any  unnecessary,  and  therefore  unlawful  violence  to 
the  master  or  crew,  the  belligerent  court  of  admiralty  is  pretty 
certain  to  award  full  compensation  in  damages;  and  if  this 
should  be  denied  to  the  neutral,  his  own  government  may  de- 


268        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

mand  and  enforce  the  redress  of  his  wrongs.  The  usual  mode, 
adopted  by  most  of  the  maritime  powers  of  Europe,  of  sum- 
moning a  neutral  to  undergo  visitation,  is  the  firing  of  a  can- 
non on  the  part  of  the  belligerent.  This  is  called  by  the  French 
semonce,  coup  d^assurancey  and  by  the  English,  affirminy  gun.  It 
is,  undoubtedly,  the  duty  of  the  neutral  to  obey  such  a  sum- 
mons. 

§  16.  Penalty  for  resisting  search.  The  penalty  for  the  vio- 
lent contravention  of  this  right,  is  the  confiscation  of  the  pro- 
perty so  withheld  from  visitation  and  search.  This  penalty  is 
not  averted  by  the  orders  of  the  neutral  sovereign  to  resist  the 
visitation  and  search  of  the  belligerent  cruiser. 

§  17.  Vessels  of  war  are  exempted  from  search.  The  bellig- 
erent right  of  visitation  and  search,  whatever  its  extent  or  limi- 
tation, is  undoubtedly  confined  exclusively  to  private  merchant 
vessels,  and  does  not  apply  to  ships  of  war.  The  immunity  of 
such  vessels  on  the  high  seas,  from  the  exercise  of  any  right  of 
visitation  and  search,  or  of  any  other  belligerent  right,  has 
been  uniformly  asserted  and  conceded. 

§  18.  Can  they  exempt  their  convoys?  One  of  the  most  com- 
mon, as  well  as  one  of  the  most  important  duties  of  public  ships 
of  war,  is  the  convoy  or  protection  of  merchant  vessels  on  the 
high  seas.  Can  such  convoying  ships  exempt  the  merchant 
vessels  under  their  protection,  from  the  exercise  of  the  right  of 
visitation  and  search,  from  which  they  themselves  are  exempt  ? 
If  so,  may  neutral  vessels  place  themselves  under  such  protec- 
tion, and  lawfully  resist  any  attempt  on  the  part  of  belligerent 
cruisers,  to  subject  them  to  such  visitation  and  search  ?  This 
question  is  properly  divided  into  two  parts:  First,  the  case  of 
convoy,  by  ships  of  war,  of  private  vessels  of  the  same  state ; 
and  second,  the  case  of  convoy  of  merchant  vessels  of  other 
neutral  states. 

§  19.  English  authorities.  British  writers  and  the  British 
courts  have  held  that  the  presence  of  an  armed  neutral  convoy 
cannot  deprive  a  lawfully  commissioned  cruiser  of  the  legal 


CH.  XXV.— RIGHT  OF  VISITATION  AND  SEARCH.       269 

right  of  visitation  and  search.  Nor  do  they  make  any  distinc- 
tion as  to  wliether  the  convoying  vessel  is  of  the  same  or  of  an- 
other nation. 

§  20.  Continental  writers.  Recent  continental  publicists,  have 
generally  contended  that  neutral  convoy  exempts  the  convoyed 
vessel  from  visitation  and  search.  Some  have  stated  this  pro- 
position in  general  terms,  while  others  limit  it  to  merchant 
vessels  convoyed  by  ships  of  war  of  their  own  nation,  and  put 
it  on  the  ground  that  the  declaration  of  the  commander  is  suffi- 
cient as  to  the  character  and  cargoes  of  the  vessels  of  his  own 
country  under  his  escort  and  protection. 

§  21.  American  authorities.  American  writel-s,  as  well  as  the 
decisions  of  our  courts,  have  generally  agreed  that  neutral 
convoy,  even  by  vessels  of  the  same  state,  cannot  exempt  from 
search,  unless  such  right  of  exemption  is  secured  by  treaty. 

§  22.  Effect  of  enemy's  convoy.  It  seems  to  be  universally 
admitted  that  if  a  neutral  vessel  avails  herself  of  a  belligerent 
convoy  to  escape  visitation  and  search,  she  incurs  the  penalty  of 
condemnation. 

§  23.  Effect  of  resistance  of  neutral  master.  It  is  generally 
held  that  the  resistance  of  search  by  a  neutral  master  will  incur 
the  penalty  of  confiscation  of  both  vessel  and  cargo. 

§  24.  Neutral  property  in  enemy's  vessels.  Sir  William  Scott 
held  that  resistance  of  search  by  an  enemy's  master  does  not 
forfeit  neutral  goods  in  such  enem'ifs  mercliant  vessel ;  but  that 
neutral  goods  in  an  armed  enemy^s  vessel  is  liable  to  confiscation. 
American  writers  have  generally  concurred  in  this  distinction, 
but  the  Supreme  Court  of  the  United  States  has  extended  the 
exemption  to  both  cases. 

§  25.  Documents  required  to  prove  neutral  character.  The 
acknowledged  belligerent  right  of  visitation  and  search  draws 
after  it  a  right  to  the  production  and  examination  of  the  ship's 
papers.  With  respect,  however,  to  the  nature  and  character  of 
the  papers  which  the  neutral  is  bound  to  have  on  board,  there 
is  some  difference  of  opinion.     Some  continental  writers  contend 

23  * 


270        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

that  the  ordinary  sea  letter  or  passport,  is  all  that  is  required, 
as  that  must  establish  the  nationality  of  the  vessel.  But  Eng- 
lish and  American  writers,  as  well  as  the  decisions  of  the  prize 
courts  of  the  two  countries,  have  held,  that  the  neutral  vessel 
may  be  required  to  have  on  board,  and  to  produce  when  visited, 
such  other  documentary  evidence  as  is  usually  carried,  and 
deemed  necessary  to  establish  the  character  of  the  ship  and  its 
cargo ;  and  that  the  absence  or  non-production  of  such  papers, 
may,  or  may  not,  be  good  cause  for  capture,  and  condemnation, 
according  to  the  particular  circumstances  of  the  case. 

§  26.  Concealment  of  papers.  Sometimes  the  neutral  vessel 
produces  the  principal  papers  necessary  to  show  her  neutrality 
and  the  innocent  character  of  her  cargo,  but  conceals  others 
which  might  have  a  contrary  effect,  as,  for  example,  secret  in- 
structions relating  to  her  destination  and  the  landing  of  goods, 
etc.  Those  who  deny  the  right  of  search  beyond  the  verifica- 
tion of  her  sea-letter,  or  manifest,  justify  such  concealment. 
But  English  and  American  writers  are  of  opinion,  that  conceal- 
ment is  in  itself  a  serious  offense  against  the  belligerent  right 
of  visit  and  search.  The  rule  of  international  law  on  this 
question  is  thus  stated  by  Chancellor  Kent :  "  The  concealment 
of  papers,"  he  says,  "  material  for  the  preservation  of  the  neutral 
character,  justifies  a  capture,  and  carrying  into  a  port  for  adju- 
dication, though  it  does  not  absolutely  require  a  condemnation. 
It  is  good  ground  to  refuse  costs  and  damages  on  restitution,  or 
to  refuse  further  proof  to  relieve  the  obscurity  of  the  case,  where 
the  cause  labored  under  heavy  doubts,  and  there  was  prima 
fade  ground  for  condemnation  independent  of  the  conceal- 
ment." 

§  27.  Spoliation  of  papers.  The  spoliation  of  the  papers  of  a 
ship,  subjected  to  the  visitation  and  search  of  a  belligerent 
cruiser,  is  a  still  more  aggravated  circumstance  of  suspicion 
than  that  of  their  denial  or  concealment,  and,  in  most  countries, 
would  be  sufficient  to  infer  guilt  and  exclude  further  proof. 
"  But  it  does  not  in  England,"  says  Kent,  "  as  it  does  by  the 


CH.  XXV.—RIOHT  OF  VISITATION  AND  SEARCH.       271 

maritime  law  of  other  countries,  create  an  absolute  presumption 
juris  d  de  jure  ;  and  yet,  a  case  that  escapes  with  such  a  brand 
upon  it,  is  saved  so  as  by  fire.  The  Supreme  Court  of  the 
United  States  has  followed  the  less  rigorous  English  rule,  and 
held  that  the  spoliation  of  papers  was  not,  of  itself,  sufficient 
ground  for  condemnation,  and  that  it  was  a  circumstance  open 
for  explanation,  for  it  may  have  arisen  from  accident,  necessity, 
or  superior  force.  If  the  explanation  be  not  prompt  and  frank, 
or  be  weak  and  futile ;  if  the  cause  labors  under  heavy  suspi- 
cions, or  there  be  a  vehement  presumption  of  bad  faith,  or  gross 
prevarication,  it  is  good  cause  for  the  denial  of  further  proof; 
and  the  condemnation  ensues  from  defects  in  the  evidence,  which 
the  party  is  not  permitted  to  supply. 

§  28.  Use  of  false  papers.  ^^  The  use  of  false  papers,"  says 
Mr.  Duer,  "  although  in  all  cases  morally  wrong,  is  not  in  all 
cases  a  subject  of  legal  animadversion  in  a  court  of  prize.  Such 
a  court  has  no  right  to  consider  the  use  of  the  papers  as  criminal, 
where  the  sole  object  is  to  evade  the  municipal  regulations  of  a 
foreign  country,  or  to  avoid  a  capture  by  the  opposite  belligerent. 
The  falsity  is  only  noxious  where  it  certainly  appears,  or  is  rea- 
sonably presumed,  that  the  papers  were  framed  with  an  express 
view  to  deceive  the  belligerent  by  ichom  the  capture  is  madej  so  that, 
if  admitted  as  genuine,  they  would  operate  as  a  fraud  on  the 
rights  of  the  captors.  It  is  not  sufficient,  that  the  papers  dis- 
close the  most  disgusting  preparations  of  fraud  in  relation  to  a 
different  voyage  or  transaction.  Fraud  must  certainly  or  prob- 
ably relate  to  the  voyage  or  transaction  which  is  the  immediate 
subject  of  investigation.'' 

§  29.  Impressment  of  seamen  from  neutral  vessels.  In  the  wars 
immediately  resulting  from  the  French  revolution,  the  British 
government  attempted  to  engraft  upon  the  right  of  visitation 
and  search  the  right  of  impressment  of  seamen  by  British 
cruisers  from  American  merchant  vessels.  The  deep  feeling  of 
opposition,  in  the  United  States,  to  this  pretended  right,  as 
claimed  by  England,  and  to  the  practice  exercised  under  it, 


272        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

cooperated  most  powerfully  with  other  causes  to  produce  the 
war  of  1812  between  the  two  countries.  The  war  was  termi- 
nated by  the  treaty  of  Ghent,  on  the  basis  of  the  status  qiw  ante 
helium,  leaving  the  questions  of  maritime  law  which  led  to  the 
war  still  unsettled. 

§  30.  American  rule  on  this  subject.  After  a  calm  and  dispas- 
sionate examination  of  the  whole  subject,  the  American  secre- 
tary of  state  announces  the  rule  which  will  be  maintained  by 
his  government.  "The  American  government/'  says  Mr. 
Webster,  "  is  prepared  to  say  that  the  practice  of  impressing 
seamen  from  American  vessels,  cannot  hereafter  be  allowed  to 
take  place.  That  practice  is  founded  on  principles  which  it  does 
not  recognize,  and  is  invariably  attended  by  consequences  so 
unjust,  so  injurious,  and  of  such  formidable  magnitude,  as  can- 
not be  submitted  to.  In  the  early  disputes  between  the  two 
governments  on  this  so  long  contested  topic,  the  distinguished 
person  to  whose  hands  were  first  committed  the  seals  of  this  de- 
partment, declared,  that  the  simplest  rule  will  be,  that  the  vessel 
being  American,  shall  be  evidence  that  the  seamen  on  board  are 
such !  Fifty  years'  experience,  the  utter  failure  of  many 
negotiations,  and  a  careful  reconsideration,  now  had,  of  the 
whole  subject,  at  a  moment  when  the  passions  are  laid,  and  no 
present  interest  or  emergency  exists  to  bias  the  judgment,  have 
fully  convinced  this  government  that  this  is  not  only  the 
simplest  and  best,  but  tlie  only  rule,  which  can  be  adopted  and 
observed  consistently  with  the  rights  and  honor  of  the  United 
States,  and  the  security  of  their  citizens.  That  rule  announces, 
therefore,  what  will  hereafter  be  the  principle  maintained  by 
their  government.  In  every  regularly  documented  American 
merchant  vessel,  the  crew  who  navigate  it  will  find  their  protection 
in  thefiag  which  is  over  themP 


CHAPTER  XXVI. 

VIOLATION  OF  NEUTRAL  DUTIES. 

§  1.  The  rights  and  duties  of  neutrality  are  correlative.  The 
rights  and  duties  of  neutrality  are  correlative,  and  the  former 
cannot  be  claimed,  unless  the  latter  are  faithfully  performed. 
If  the  neutral  state  fail  to  fulfill  the  obligations  of  neutrality,  it 
cannot  claim  the  privileges  and  exemptions  incident  to  that 
condition.  The  rule  is  equally  applicable  to  the  citizens  and 
subjects  of  a  neutral  state.  So  long  as  they  faithfully  perform 
the  duties  of  neutrality,  they  are  entitled  to  the  rights  and  im- 
munities of  that  condition.  But  for  every  violation  of  neutral 
duties,  they  are  liable  to  the  punishment  of  being  treated  in 
their  persons  or  property  as  public  enemies  of  the  offended  bel- 
ligerent. 

§  2.  Responsibility  of  individuals  for  violation  of  neutral  duties. 
As  a  general  rule  the  penalty  for  ordinary  violations  of  neutral 
duty,  not  in  themselves  acts  of  positive  hostility,  by  individuals, 
is  imposed  and  enforced  upon  the  individual,  by  the  capture  and 
confiscation  of  his  property.  Thus,  the  neutral  state  is  not 
bound  to  restrain  its  subjects  from  engaging  in  contraband  trade, 
or  from  violating  the  right  of  visitation  and  search,  or  the  law 
of  sieges  and  blockades ;  the  law  imposes  upon  the  individual 
the  duty  of  abstaining  from  such  illegal  acts,  and,  if  guilty  of 
a  violation  of  this  duty,  he  is  the  one  to  suffer  the  punishment 
due  to  the  offense.  Nor  do  the  courts  of  a  neutral  country,  as 
a  general  rule,  enforce  penalties  for  violation  of  neutral  duty  by 
individuals. 

§  3.  Criminal  character  of  such  violations  of  duty.     It  may 

2  K  273 


274        INTERNATIONAL    LAW  AND  LAWS  OF  WAR. 

be  stated,  as  a  general  principle  which  lies  at  the  foundation  of 
the  rules  of  international  law  relating  to  this  subject,  that  the 
violation  of  neutral  duties  is  neither  innocent  nor  lawful.  It  is 
not  simply  the  penalty  incurred  by  such  violation  that  makes  it 
wrong,  as  some  have  asserted ;  nor  is  it  correct  to  say  that,  if 
the  neutral  merchant  is  willing  to  incur  the  risk  of  capture  and 
condemnation,  he  may  engage,  with  entire  security  of  con- 
science, in  a  trade  forbidden  by  the  law  of  nations.  The  act  is 
wrong  in  itself,  and  the  penalty  results  from  his  violation  of 
moral  duty,  as  well  as  of  law. 

§  4.  When  the  state  becomes  responsible.  The  duty  of  a  neu- 
tral state  towards  those  engaged  in  war  is  that  of  entire  im- 
partiality as  well  as  neutrality.  If  it  assist  one  of  the  bellig- 
erents ;  if  it  grant  favors  to  one  to  the  detriment  of  the  others ; 
if  it  neglect  or  refuse  to  maintain  the  inviolability  of  its  terri- 
tory; or  if  it  fail  to  restrain  its  own  citizens  and  subjects  from 
overstepping  the  just  bounds  of  neutrality,  as  defined  and  es- 
tablished by  the  law  of  nations, — it  violates  its  duties  toward 
the  belligerent  who  is  injured  by  such  act  or  neglect,  and  is 
justly  chargeable  with  hostility.  Such  conduct  furnishes  good 
cause  for  complaint,  and,  if  persisted  in,  may  become  just  cause 
pf  Var. 

§  5.  Neutral  vessels  transporting  enemy's  goods.  The  first 
question  which  presents  itself  for  consideration,  as  connected 
with  neutral  duties,  is  the  transportation  of  goods  of  an  enemy 
in  a  neutral  vessel.  The  concurring  testimony  of  text-writers 
is,  that  by  the  usage  of  the  world,  neutral  vessels  are  not  liable 
to  condemnation  for  carrying  enemy^s  goods ^  whatever  rule  may 
be  adopted  or  enforced  with  respect  to  the  condemnation  of  the 
goods  themselves.  The  transportation  of  enemy's  goods  in  a 
neutral  vessel,  cannot,  therefore,  be  regarded  in  general,  as  a 
violation  of  any  neutral  duty,  or  as  an  act  subject  to  any  pun- 
ishment. 

§  6.  The  goods  so  transported.  English  and  American  au- 
thorities are  agreed  that  enemy's  goods  so  transported  are  subject 


CH.  XXVL— VIOLATION  OF  NEUTRAL  DUTIES.       275 

to  capture  and  confiscation ;  but  the  rule  is  contested  by  modern 
continental  writers. 

§  7.  The  United  States  on  the  rule  of  "  Free  ships,  free  goods." 
The  government  of  the  United  States,  while  recognizing  the 
right  of  capturing  enemy's  goods  in  neutral  vessels  as  a  subsist- 
ing right  under  the  law  of  nations,  has  always  endeavored  to 
incorporate  the  principle  of  free  ships j  free  goods,  in  its  treaties 
with  other  powers. 

§  8.  Neutral  goods  in  enemy's  vessels.  The  United  States  have 
invariably  opposed  the  rule  that  enemy^s  sJiips  make  enemi/^s  goods, 
and  the  supreme  court  has  refused  to  condemn  neutral  goods  on 
board  an  enemy's  vessel.  While  England  adopted  the  same  rule 
in  regard  to  neutral  goods,  France  generally  condemned  them, 
although  she  followed  the  maxim  of  free  ships,  free  goods. 

§  9.  The  two  maxims  distinct.  It  is  thus  seen  that  these  two 
maxims  have  never  been  regarded  as  necessarily  connected,  for 
some  governments  have  adopted  the  one  while  rejecting  the 
other. 

§  10.  France  and  England  as  allies.  At  the  beginning  of  the 
recent  war  between  the  Allies  and  Russia,  the  different  construc- 
tions put  upon  the  law  of  nations  by  England  and  France,  with 
respect  to  the  maxims  of  free  ships,  free  goods,  and  enemy^s  ships, 
etiemy^s  goods,  threatened  to  aggravate  the  difficulties  to  which 
war  always  subjects  neutral  commerce.  Neutral  property,  which 
England  would  not  condemn  for  being  found  in  an  enemy's 
vessel,  would  be  good  prize  to  the  French  cruiser ;  while  the 
neutral  ship,  whose  flag  would  protect,  against  France,  enemy's 
property  on  board,  might  be  sent  by  an  English  cruiser  into  an 
English  port,  her  voyage  broken  up,  and  her  cargo  condemned, 
with  no  allowance  for  freight  or  damages.  A  compromise  of 
principles  was  therefore  necessary  to  the  co-operation  of  their 
navies. 

§  11.  Declaration  of  1854.  A  declaration  was  accordingly 
agreed  upon  by  the  two  powers,  in  April,  1854,  "  waiving  thf» 
right  of  seizing   enemy's  property  laden   on   board  a  neutral 


276        INTERNATIONAL    LAW  AND  LAWS  OF   WAR. 

vessel,  unless  it  be  contraband  of  war,"  and  of  "  confiscating 
neutral  property,  not  being  contraband  of  war,  found  on  board 
enemy's  ships."  The  obnoxious  pretensions  of  England  were 
thus  abandoned,  as  a  consideration  for  obtaining  from  France 
additional  concessions  on  her  part.  Nevertheless,  the  arrange- 
ment was,  upon  its  face,  only  for  the  war,  and  was  declared  to 
be  a  temporary  waiving  of  belligerent  rights  recognized  by  the 
law  of  nations.  Either  party  might,  at  the  close  of  that  war, 
have  resumed  the  pretensions  thus  abandoned,  and  have  claimed 
in  any  future  war,  the  belligerent  rights,  the  exercise  of  which, 
was  thus  merely  "waived." 

§  12.  Declaration  of  the  Congress  of  Paris.  All  fears  of  such  a 
result,  however,  were  removed  by  the  declaration  of  the  con- 
gress of  Paris,  April  16th,  1856,  by  the  plenipotentiaries  of 
Great  Britain,  France,  Russia,  Austria,  Prussia,  Sardinia,  and 
Turkey.  The  second  and  third  articles  of  this  declaration  are 
as  follows :  "  2d.  The  neutral  flag  covers  enemy's  goods,  with 
the  exception  of  contraband  of  war."  "  3d.  Neutral  goods, 
with  the  exception  of  contraband  of  war,  are  not  liable  to  cap- 
ture under  an  enemy's  flag." 

§  13.  Proof  of  neutral  goods  in  enemy's  ships.  It  is  an  estab- 
lished rule  of  the  law  of  prize,  that  all  goods  found  in  an 
enemy's  ship  is  presumed  to  be  enemy's  property — res  in  hostium 
navibtis,  prcesumuntur  esse  hostium  donee  probetur.  The  evidence 
required  to  repel  this  presumption,  depends  upon  the  particular 
character  of  the  case.  If  the  character  of  the  ship  is  certainly 
hostile,  jhe  neutral  character  of  the  goods  must  be  shown  by 
documents  on  board  at  the  time  of  capture.  If  these  are 
insufficient,  further  proof  is  never  allowed,  and  the  penalty  of 
forfeiture  attaches  as  a  matter  of  course. 

§  34.  Neutral  ships  under  enemy's  flag  and  pass.  Another 
violation  of  neutral  duty  is  the  use  of  the  flag  and  pass  of  the 
enemy.  A  neutral  vessel  is  bound  by  the  character  which  she 
has  thus  assumed,  and  the  owner  is  not  allowed  to  contradict 
his  own  acts,  and  to  redeem  his  vessel  from  condemnation,  by  a 


CH.  XXVL— VIOLATION  OF  NEUTRAL  DUTIES.        277 

disclaimer  of  the  hostile  character  which,  with  a  view  to  his  own 
interests,  or  those  of  the  enemy,  he  has  elected  she  should  bear. 

§  15.  Neutral  goods  in  such  vessels.  But  while  the  belligerent 
flag  and  pass  are  in  all  cases,  decisive,  as  to  the  owners,  of  the 
character  of  the  ship,  a  distinction  is  made  by  the  English 
courts  in  favor  of  the  cargo  of  such  ships,  if  the  shipment  were 
made  in  time  of  peace  and  plainly  not  in  contemplation  of  war. 
Even  where  the  goods  themselves,  for  purposes  having  no  rela- 
tion to  a  future  war,  are  clothed  with  a  foreign  character,  now 
become  hostile,  the  owner  is  not  concluded,  but  is  permitted  to 
disprove  the  colorable  title,  and,  upon  due  proof  of  his  neutral 
character  and  actual  ownership,  his  property  is  restored. 

§  16,  Neutral  vessel  in  enemy's  service.  If  a  neutral  vessel  is 
captured  while  in  the  employment  of  the  enemy  or  his  officers, 
for  purposes  immediately  or  mediately  connected  with  the 
operations  of  the  war,  the  owner  is  never  permitted  to  assert 
his  claim.  The  nature  of  the  service  or  employment  is  very 
justly  deemed,  in  such  a  case,  conclusive  evidence  of  its  hostile 
character.  While  thus  employed  the  neutral  vessel  is  as  truly 
a  vessel  of  the  enemy,  as  if  she  were  such  by  documentary  title ; 
and  the  owner  is  not  allowed,  for  his  own  protection,  to  divest 
her  of  the  character  which  she  has  thus  assumed.  Nor  will  the 
prize  court  listen  to  the  plea  that  the  vessel  was  impressed  into 
such  service  by  duress  and  violence. 

§  17.  Transporting  military  persons.  So,  also,  if  the  owner 
of  a  neutral  ship  has  suffered  his  vessel  to  be  employed  in  trans- 
porting military  persons  or  military  stores  for  the  enemy,  the 
vessel  and  cargo  are  condemned.  Nor  in  such  cases  is  it  held 
necessary  that  the  privity  of  the  master,  or  his  owners,  be  shown ; 
it  is  sufficient  that  the  employment  be  proven ;  no  plea  of  igno- 
rance or  imposition  is  received.  Where  imposition  is  practiced 
to  entrap  a  neutral  vessel  into  a  hostile  service,  it  operates  as 
force,  and  redress  in  the  way  of  indemnification  must  be  sought 
against  those  who,  by  imposition  or  deceit,  exposed  the  property 
to  capture. 

24 


278        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

.  §  18.  Conveying  enemy's  dispatches.  A  neutral  vessel  fraudu- 
lently carrying  the  dispatches  of  an  enemy,  is,  as  a  general  rule, 
liable  to  condemnation.  Public  dispatches  are  defined  to 
embrace  all  official  communications  of  public  officers  relating  to 
public  affiiirs.  "  The  carrying  of  two  or  three  cargoes  of  stores," 
says  Kent,  abbreviating  the  language  of  Sir  Wm.  Scott,  "is 
necessarily  an  assistance  of  a  limited  nature ;  but  in  the  trans- 
mission of  dispatches,  may  be  conveyed  the  entire  plan  of 
campaign,  and  it  may  lead  to  a  defeat  of  all  the  projects  of  the 
other  belligerent  in  that  theatre  of  the  war.  The  appropriate 
remedy  for  this  offense,  is  the  confiscation  of  the  ship ;  and  in 
doing  so,  the  courts  Inake  no  innovation  on  the  ancient  law,  but 
they  only  apply  established  principles  to  new  combinations  of 
circumstances.  There  would  be  no  penalty  in  the  mere  confis- 
cation of  the  dispatches.  The  proper  and  efficient  remedy  is  the 
confiscation  of  the  vehicle  employed  to  carry  them ;  and  if  any 
privity  subsists  between  the  owners  of  the  cargo  and  the  master, 
they  are  involved  by  implication  in  his  delinquency.  If  the 
cargo  be  the  property  of  the  proprietor  of  the  ship,  then,  by  the 
general  rule,  oh  continentiam  delicti^  the  cargo  shares  the  same 
fate,  and  especially  if  there  was  an  active  interposition  in  the 
service  of  the  enemy,  concerted  and  continued  in  fraud." 

§  19.  Exception  in  case  of  mall-packets.  The  mere  fact  that 
such  dispatches  were  found  on  board  a  neutral  vessel,  is  not  suf- 
ficient to  produce  her  condemnation ;  for  the  rule  refers  to  a 
fraudulent  carrying  of  the  dispatches  of  the  enemy,  and  it  is 
presumed  that  it  would  not  apply  to  regular  postal  packets, 
whose  mails,  by  international  conventions,  are  distributed 
throughout  the  civilized  world ;  nor  even  to  merchant-vessels 
which,  in  some  countries,  are  obliged  to  receive  letters  and  mail- 
matter  sent  to  them  from  the  post-offices.  The  master  must 
necessarily  be  ignorant  of  the  contents  of  the  letters  so  received, 
and,  in  the  absence  of  all  suspicion  of  fraud,  or  of  interposition 
in  the  service  of  the  enemy,  the  mere  carrying  of  an  enemy's 
dispatches,  under  such  circumstances,  could  hardly  be  regarded 


CH.  XXVL— VIOLATION  OF  NEUTRAL  DUTIES.        279 

as  a  delinquency  under  the  law  of  nations,  and  a  violation  of 
neutral  duty.  The  case  is  very  different  where  the  neutral 
vessel  is  employed  by  the  belligerent  for  that  purpose,  or  carries 
them  fraudulently,  and  in  the  service  used  for  the  benefit  of  a 
belligerent. 

§  20.  In  case  of  enemy's  ambassadors  In  nentral  state.  Another 
important  exception  to  this  rule,  is  the  conveyance  of  the  dis- 
patches of  an  ambassador,  or  other  public  minister  of  the  enemy, 
resident  in  a  neutral  state.  In  the  language  of  Sir  Wm.  Scott, 
"They  are  dispatches  from  persons  who  are,  in  a  peculiar 
manner,  the  favorite  object  of  the  protection  of  the  law  of  nations, 
residing  in  the  neutral  country  for  the  purpose  of  preserving  the 
relations  of  amity  between  that  state  and  their  own  government. 
On  this  ground  a  very  material  distinction  arises,  with  respect 
to  the  right  of  furnishing  the  conveyance.  The  neutral  country 
has  a  right  to  preserve  its  relations  with  the  enemy,  and  you  are 
not  at  liberty  to  conclude  that  any  communication  between 
them  can  partake,  in  any  degree,  of  the  nature  of  hostility 
against  you.^' 

§  21.  Case  of  the  Trent.  In  1861,  the  British  steam  packet 
Trent,  sailing  from  one  neutral  port  to  another,  was  overhauled 
by  an  American  man  of  war  on  the  high  seas,  and  four  persons 
taken  from  it  under  the  pretext  that  they  were  ambassadors  and 
bearers  of  dispatches  from  the  Rebel  authorities  to  their  agents 
in  Europe.  In  the  first  place  there  is  no  process  known  to 
international  law  by  which  a  hostile  ambassador,  or  traitor,  or 
other  criminal,  may  be  extracted  from  a  neutral  ship  on  the 
high  seas.  In  the  second  place  no  hostile  dispatches  were  found. 
In  the  third  place,  the  neutral  vessel  was  conveying  mails  and 
passengers  from  one  neutral  port  to  another,  which  was  prima 
facie-  evidence  of  her  innocence.  She  was  liable  generally  to 
belligerent  visitation  and  search ;  but  it  is  doubtful  if  she  would 
have  been  liable  to  condemnation,  even  had  hostile  dispatches, 
under  the  circumstances,  been  found  on  board.  Certainly  not 
unless  they  had  been  fraudulently  carried.     The  United  States 


280        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

disavowed  the  act  of  its  officer,  and  delivered  up  the  prisoners 
and  captured  mails. 

§  22.  Rule  of  1756.  If  a  neutral  engages  in  a  commerce 
which  is  exclusively  confined  to  the  subjects  of  another  country, 
and  which  is  interdicted  to  all  others,  so  that  it  cannot  be 
carried  on  at  all  in  the  name  of  a  foreigner,  such  a  commerce  is 
considered  so  entirely  national  as  to  follow  the  situation  of  the 
country,  and  to  impress  its  hostile  character  upon  the  property 
engaged  in  it.  This  is  called  the  rule  of  1756.  Its  correct- 
ness is  now  generally  admitted. 

§  23.  Its  attempted  extension.  But  during  the  wars  of  1793 
and  1801  Great  Britain  attempted  to  give  this  rule  a  much 
greater  extension,  and  asserted  that  where  a  commerce,  which 
had  previously  been  regarded  as  a  national  monopoly,  is  thrown 
open  in  time  of  war  to  all  nations,  without  reserve,  by  a  general, 
and,  on  its  face,  a  permanent  regulation,  neutrals  have  no  right 
to  avail  themselves  of  the  concession,  but  that  their  entrance 
into  the  trade  thus  opened,  is  a  criminal  departure  from  the 
impartiality  they  are  bound  to  observe.  It  was  formerly  the 
policy  of  the  great  European  powers  to  confine  exclusively  to 
their  ships  and  subjects  the  trade  between  their  own  ports,  and 
between  the  mother  country  and  its  colonies.  During  the  wars 
referred  to,  some  of  the  continental  states  abolished  this 
monopoly,  and  opened  their  coasting  and  colonial  trade  to  all 
nations  without  reserve.  But  England  contended  that  such  a 
change  of  policy  by  a  belligerent  in  time  of  war  was  not  sanc- 
tioned by  the  law  of  nations,  and  neutral  vessels  engaged  in 
such  trade  were  seized  by  her  cruisers,  and  condemned  by  her 
courts  of  admiralty.  The  United  States  and  most  other  powers 
earnestly  and  energetically  remonstrated  against  this  extension 
of  the  Rule  of  1756,  as  an  innovation  which  forms  no  part  of 
the  general  and  permanent  code  of  international  jurisprudence, 
and  any  new  attempt  to  enforce  its  application  to  neutral  com- 
merce would  probably  be  regarded  as  an  act  of  direct  and 
immediate  hostility. 


CHAPTER    XXyil. 

PACIFIC  INTERCOURSE  OF  BELLIGERENTS. 

§  1.  Object  and  character  of  commercia  belli.  The  usage  of 
civilized  nations  has  introduced  a  certain  friendly  intercourse 
in  war,  technically  called  commercia  belli,  by  which  its  violence 
may  be  allayed,  so  far  as  is  consistent  with  its  object  and 
purpose,  and  a  way  be  kept  open  which  may  lead,  in  time,  to 
an  adjustment  of  differences,  and,  ultimately,  to  peace.  Were 
all  pacific  communications  between  armies  absolutely  cut  off*, 
war  would  not  only  become  unnecessarily  cruel  and  destructive, 
but  there  would  be  no  chance  of  terminating  it,  short  of  the 
total  annihilation  of  the  belligerents. 

§  2.  Military  compacts  and  conventions.  Belligerent  states, 
and  their  armies  and  fleets,  frequently  have  occasion,  during  the 
continuance  of  a  war,  to  enter  into  agreements  of  various  kinds ; 
sometimes  for  a  general  or  partial  suspension  of  hostilities,  for 
the  capitulation  of  a  place,  or  the  surrender  of  an  army,  for  the 
exchange  of  prisoners,  or  the  ransom  of  captured  property ;  and 
sometimes  for  the  purpose  of  regulating  the  general  manner  of 
conducting  hostilities,  or  the  mode  of  carrying  on  the  war.  All 
these  agreements,  of  whatsoever  kind,  are  included  under  the 
general  name  of  compacts  or  conventions.  These  compacts 
which  relate  to  the  pacific  intercourse  of  the  belligerents, 
suppose  the  war  to  continue;  those  which  put  an  end  to  it, 
come  under  the  general  head  of  treaties  of  peace,  which  will  be 
considered  in  another  chapter. 

§  3.  Suspensions  of  arms,  truces,  and  conventions.  If  the 
cessation  of  hostilities  is  only  for  a  very  short  period,  or  at  a 

24  *  2  L  281 


282        INTERNATIONAL    LAW  AND  LAWS  OF  WAB. 

particular  place,  or  for  a  temporary  purpose,  such  as  for  a 
parley,  or  a  conference,  or  for  removing  the  wounded,  and 
burying  the  dead,  after  a  battle,  it  is  called  a  stispension  of  arms. 
This  kind  of  compact  may  be  formed  between  the  immediate 
commanders  of  the  opposing  forces,  and  is  obligatory  upon  all 
persons  under  their  respective  commands.  Even  commanding 
officers  of  detachments  may  enter  into  this  kind  of  compact, 
but  such  an  agreement  can  only  bind  the  detachment  itself;  it 
cannot  affect  the  operations  of  the  main  army,  or  of  other  troops 
not  under  the  authority  of  the  officer  making  it.  A  suspension 
of  arms  is  only  for  a  temporaiy  purpose,  and  for  a  limited 
period.  If  the  suspension  of  hostilities  is  for  a  more  consider- 
able length  of  time,  or  for  a  more  general  purpose,  it  is  called 
a  t?mce  or  an  armistice. 

§  4.  Authority  to  make  them.  A  general  suspension  of  hos- 
tilities throughout  the  nation,  can  only  be  made  by  the  sover- 
eignty of  the  state,  either  directly,  or  by  authority  specially 
delegated.  Such  authority,  not  being  essential  to  enable  a 
general  or  commander  to  fulfill  his  official  duties,  is  never 
implied,  and,  in  such  a  case,  the  enemy  is  bound  to  see  that  the 
agent  is  specially  authorized  to  bind  his  principal.  But  a 
partial  truce  may  be  concluded  between  the  military  and  naval 
commanders  of  the  resj^ective  forces,  without  any  special  au- 
thority for  that  purpose,  where,  from  the  nature  and  extent  of 
their  commands,  such  authority  is  necessarily  implied,  as  essen- 
tial to  the  fulfillment  of  their  official  duties.  If  the  commander, 
in  making  such  a  compact,  has  abused  his  trust  to  the  advan- 
tage of  the  enemy,  he  is  accountable  to  his  own  state  for  such 
abuse.  And  if  he  has  exceeded  his  implied  authority  and  stipu- 
lated for  what  is  not  within  his  power  to  control,  as  for  troops 
not  under  his  command,  his  acts  so  far  as  such  troops  are  con- 
cerned are  null  and  void.  A  case  occurred  during  the  Mexican 
War  illustrative  of  this.  By  the  convention  of  February  29th, 
ratified  by  General  Butler,  March  5th,  and  published  in  general 
orders  No.  18,  March  6th,  1848,  it  was   stipulated  that  the 


CH.  XXVIL— INTERCOURSE  OF  BELLIGERENTS.     283 

Mexican  civil  authorities,  political,  administrative,  and  judicial, 
were  to  be  reestablished  and  installed  in  their  respective  offices. 
The  terms  of  the  convention  were  general,  and  included  the 
entire  Republic  of  Mexico.  But  California,  although  a  part  of 
the  Mexican  territory,  had  been  organized  into  a  separate  mili- 
tary department,  entirely  independent  of  the  general  command- 
ing in  Mexico.  Pico,  the  Mexican  Governor  of  California, 
basing  himself  on  the  words  of  this  convention,  demanded  of 
the  American  military  governor  of  that  department,  to  be  rein- 
stated and  recognized  in  his  official  position  and  character.  The 
American  commander  not  only  refused  to  comply  with  Pico's 
demand,  but  adopted  pretty  severe  measures  to  prevent  any 
attempt  on  his  part  to  exercise  authority  in  California.  If  the 
convention,  entered  into  by  General  Butler  in  the  capital  of 
Mexico,  was  really  intended  to  include  California,  as  its  terms 
would  seem  to  indicate,  he,  undoubtedly,  exceeded  his  powers, 
and  the  armistice,  so  far  as  concerned  California,  was  utterly 
null  and  void. 

§  5.  Acts  of  individuals  ignorant  of  a  truce.  A  truce  binds 
the  contracting  parties  from  the  time  of  its  conclusion,  unless 
otherwise  specially  provided;  but  it  does  not  bind  the  indi- 
viduals of  the  nation  so  as  to  make  them  personally  responsible 
for  a  breach  of  it,  until  they  have  had  actual  or  constructive 
notice.  If,  therefore,  individuals,  without  a  knowledge  of  the 
suspension  of  hostilities,  kill  an  enemy  or  destroy  his  property, 
they  do  not,  by  such  acts,  commit  a  crime,  nor  are  they  bound 
to  make  pecuniary  compensation ;  but,  if  prisoners  are  taken, 
or  prizes  captured,  the  sovereign  is  under  obligation  to  imme- 
diately release  the  former,  and  restore  the  latter. 

§  6.  Wliat  may  be  done  during  a  truce.  During  the  continu- 
ance of  a  general  truce,  each  party  to  it  may,  within  his  own 
territories,  do  whatever  he  would  have  a  right  to  do  in  time  of 
peace,  such  as  repairing  or  building  fortifications,  constructing 
and  fitting  out  vessels,  levying  and  disciplining  troops,  casting 
cannon  and  manufacturing  arms,  and  collecting  provisions  and 


284        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

munitions  of  war.  He  may  also  move  his  armies  from  one  part 
of  his  territory  to  another,  not  occupied  by  the  enemy,  and  call 
home,  or  send  abroad  upon  the  ocean  his  vessels  of  war.  And, 
in  the  theatre  of  hostilities,  and  in  the  face  of  the  enemy,  he 
may  do  whatever,  under  all  the  circumstances,  would  be  deemed 
compatible  with  good  faith  and  the  spirit  of  the  agreement. 
In  the  case  of  a  truce  between  the  governor  of  a  fortress  or 
fortified  town,  and  the  general  or  admiral  investing  it,  either 
party  is  at  liberty  to  do  what  he  could  safely  have  done  if  hos- 
tilities had  continued.  For  example,  the  besieged  may  repair 
his  material  of  war,  replenish  his  magazines,  and  strengthen  his 
works,  if  such  works  were  beyond  the  reach  of  the  enemy  at 
the  beginning  of  the  truce,  and  if  the  provisions  and  succors  are 
introduced  into  the  town  in  a  way  or  through  passages  which 
the  besieging  army  could  not  have  prevented.  But  the  besieged 
cannot  construct  or  repair  works  of  defense,  if  he  could  not 
safely  have  done  this  in  case  the  hostilities  had  continued ;  nor 
introduce  provisions,  military  munitions  or  troops  through 
passages  which  were  occupied  or  commanded  by  the  enemy  at 
the  time  of  the  cessation  of  hostilities ;  nor  can  the  besiegers 
continue  works  of  attack  which  might  have  been  prevented  or 
interrupted  by  the  besieged ;  for  all  acts  of  this  kind  would  be 
making  a  mischievous  and  fraudulent  use  of  the  agreement,  and 
violating  its  good  faith  and  spirit ;  the  general  meaning  of  such 
compacts  is,  that  all  things  within  the  limits  of  the  theatre  of 
immediate  operations,  shall  remain  as  they  were  at  the  moment 
of  the  conclusion  of  the  truce.  To  receive  and  harbor  deserters 
within  such  limits,  is  an  act  of  hostility,  and,  therefore,  a  viola- 
tion of  the  implied  conditions  of  a  truce. 

§  7.  Conditional  and  special  truces.  Where  a  truce  is  granted 
for  a  certain  specified  object,  its  effects  are  limited  to  the  pur- 
pose mentioned,  and  if  either  party  should  attempt  to  perform 
any  act  to  the  disadvantage  of  the  other,  not  comprehended  in 
the  object  of  such  truce,  this  other  party  has  the  undoubted 
right  to  hinder  it  by  force,  notwithstanding  the  compact.     So, 


CH.  XXVIL— INTERCOURSE  OF  BELLIGERENTS.     285 

where  the  truce  is  conditional,  and  the  conditions  which  have 
been  agreed  upon  are  broken  by  one  party,  the  truce  is  no 
longer  binding  upon  the  other. 

§  8.  Their  interpretation.  Truces,  and  other  military  com- 
pacts are  to  be  interpreted  by  the  same  rules  as  treaties  and 
other  agreements.  Most  questions  relating  to  such  compacts 
may  be  easily  determined,  either  by  considering  the  nature  and 
character  of  the  compact  itself,  or  by  applying  to  it  the  common 
rules  of  interpretation.  Nevertheless,  a  difference  of  opinion 
will  often  arise  respecting  the  proper  construction  to  be  given  to 
particular  terms,  which  are  in  their  nature  ambiguous.  Thus, 
writers  on  the  laws  of  war  have  discussed  the  question  whether 
a  truce  for  a  given  period,  as,  for  instance,  from  the  first  of 
January,  to  the  first  of  February,  will  include  or  exclude  the 
first  day  of  each  of  these  months.  Grotius  is  of  opinion,  that 
the  first  day  of  January  would  be  excluded,  and  the  whole  of 
the  first  day  of  February,  included.  Puffendorff,  Heineccius, 
and  Vattel,  would  include  in  the  truce  both  the  day  of  its  com- 
mencement and  the  day  of  its  termination.  Rutherforth  can 
see  no  good  reason  why  one  day  should  be  excluded  and  the 
other  included. 

§  9.  Renewal  of  hostilities.  As  a  truce,  or  armistice,  merely 
suspends  hostilities,  they  are  renewed  at  its  expiration  without 
any  new  declaratign  or  notice ;  for  as  every  one  is  bound  to 
know  the  effect  of  such  termination,  no  public  declaration  is  re- 
quired. But  if  the  truce  was  for  an  indefinite  period  of  time, 
justice  and  good  faith  require  due  notice  of  intention  by  the 
party  who  terminates  it.  If,  however,  the  conditions  of  the 
truce  be  broken  by  one  belligerent,  there  is  no  doubt  that  the 
other  may  immediately  resume  hostilities  without  any  declara- 
tion. It  is  sometimes  stipulated  in  the  truce,  that  the  violator 
shall  pay  a  certain  penalty  for  the  violation.  In  such  case  the 
penalty  should  be  demanded  before  a  return  to  war,  and,  if 
paid,  the  right  of  hostilities  does  not  occur.  A  truce  is  not 
broken  by  the  acts   of  private  persons,  unless  they  are  ordered 


286        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

or  ratified  by  public  authority.  But,  unless  the  private  offend- 
ers are  punished  or  surrendered,  and  unless  the  thing  seized  is 
restored,  or  compensated  for,  it  is  legally  presumed  that  the  act 
of  the  private  offender  was  duly  ordered  or  ratified.  This  is 
the  rule  of  public  law.  Where  an  armistice  is  subject  to  the 
ratification  of  a  superior  authority,  hostilities  may  be  resumed 
as  soon  as  it  is  made  known  to  the  enemy  that  the  ratification 
is  refused,  though  by  its  terms  a  certain  time  has  been  stipu- 
lated for  its  cessation  after  the  giving  of  such  notice;  for  if  the 
armistice  itself  is  annulled,  all  its  stipulations  become  void  and 
of  no  effect,  and  the  parties  are  free  to  act  as  if  it  had  never 
been  entered  into. 

§  10.  Capitulation.  Capitulations  are  agreements  entered  into 
by  a  commanding  officer  for  the  surrender  of  his  army,  or  by 
the  governor  of  a  town,  or  a  fortress,  or  particular  district  of 
country,  to  surrender  it  into  the  hands  of  the  enemy.  Capitu- 
lations usually  contain  stipulations  with  respect  to  the  inhabi- 
tants of  the  place  which  is  surrendered,  the  security  of  their 
religion,  property,  privileges  and  franchises,  and  also  with  re- 
spect to  the  troops  or  garrison,  either  allowing  them  to  march 
out  with  their  arms  and  baggage,  with  the  honors  of  war,  or 
requiring  them  to  lay  down  their  arms  and  surrender  as  prison- 
ers of  war.  The  general  phrase  "with  all  the  honors  of  war,^' 
is  usually  construed  to  include  the  right  to  march  with  colors 
displayed,  drums  beating,  etc.  It  is  proper,  however,  that  such 
matters  should  be  precisely  stated  in  the  articles  of  capitulation. 
From  the  nature  of  the  case,  a  larger  latitude  is  given  to  the 
powers  of  commanders  in  regard  to  capitulations  than  in  regard 
to  ordinary  captures  of  prisoners  of  war.  They  are  also  excep- 
tions to  general  cartels  previously  entered  into,  unless  fairly  in- 
cluded by  the  terms  of  the  agreement.  A  capitulation  includes 
all  property  in  the  place  not  expressly  excepted,  and  a  com- 
mander who  destroys  military  stores  or  other  property  after  en- 
tering into  such  agreement  not  only  forfeits  all  its  benefits,  but 
he  subjects  himself  to  severe  puniskment  for  his  perfidy.     So 


CH.  XXVIL— INTERCOURSE  OF  BELLIGERENTS.       287 

after  a  capitulation  for  the  surrender  of  an  army  in  the  field, 
any  officer  who  destroys  his  side-arms  or  his  insignia  of  rank, 
deprives  himself  of  all  the  privileges  of  that  rank,  and  may  be 
treated  as  a  private  soldier.  The  reason  of  the  rule  is  manifest. 
The  victor  is  entitled  to  all  the  honors  and  benefits  of  his  agree- 
ment the  moment  it  is  entered  into,  and  to  destroy  colors,  arms, 
etc.,  thereafter,  is  to  deprive  him  of  his  just  rights.  Such  con- 
duct is  both  dishonorable  and  criminal.  Although  all  prison- 
ers of  war  must  surrender  their  side-arms,  they  are  sometimes 
returned  as  a  mark  of  individual  and  personal  respect. 

§  11.  Individual  promises.  Small  detached  parties  or  individ- 
uals, whether  belonging  to  the  military  service  or  not,  who  hap- 
pen to  fall  in  with  the  enemy  in  a  place  distant  from  succor  or 
any  superior  officer,  are  left  to  their  own  discretion  and  may,  so 
far  as  concerns  their  own  persons,  do  everything  which  a  com- 
mander might  do  with  respect  to  himself  and  the  troops  under 
his  command.  Promises  made  by  individuals  under  such  cir- 
cumstances, if  confined  to  their  own  persons  and  within  the 
sphere  of  a  private  individual,  are  valid  and  binding,  and  the 
sovereign  has  no  right  to  release  them  from  their  obligations,  or 
compel  them  to  violate  the  compact.  For  when  a  subject  can 
neither  receive  his  sovereign's  orders,  nor  enjoy  his  protection, 
he  resumes  his  natural  rights,  and  may  provide  for  his  safety  by 
any  just  and  honorable  means  in  his  power. 

§  12.  Passports  and  safe-conducts.  A.  passport  ov  safe-conduct, 
is  a  document  granting  to  persons  or  property  an  exemption  from 
the  operations  of  war,  for  the  time,  and  to  the  extent  prescribed 
in  the  instrument  itself.  The  term  passport  is  applied  to  per- 
sonal permissions  given  on  ordinary  occasions,  both  in  peace 
and  war,  where  there  is  no  reason  why  the  parties  named  in 
them  should  not  go  where  they  please ;  while  safe-conduct  is 
the  name  usually  given  to  the  instrument  which  authorizes  an 
enemy,  or  an  alien,  to  go  into  places  where  he  could  not  go 
without  danger,  or  to  carry  on  trade  forbidden  by  the  laws  of 


288        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

war.  The  word  passport,  however,  is  more  generally  applied  to 
persons,  and  safe-conduct  to  both  persons  and  things. 

§  13.  When  and  how  revoked.  A  passport,  or  safe-conduct, 
may,  for  good  reasons,  be  revoked  by  the  authority  which  granted 
it ;  on  the  general  principle  of  the  law  of  nations,  that  privileges 
may  always  be  revoked,  when  they  become  detrimental  to  the  state. 
A  permission  granted  by  an  officer  may,  for  this  reason,  be  revoked 
by  his  superior,  but,  until  so  revoked,  it  is  as  binding  upon  the 
successor  as  upon  the  party  who  issued  it.  The  reasons  for  such 
revocation  need  not  always  be  given ;  but  permissions  of  this 
kind  can  never  be  used  as  snares  to  get  persons  or  effects  into  our 
power,  and  then,  by  a  revocation,  hold  the  persons  as  prisoners, 
or  confiscate  the  property.  Such  conduct  would  be  perfidy 
toward  an  enemy,  and  contrary  to  the  laws  of  war. 

§  14.  Their  violation,  how  punished.  Any  violation  of  the 
good  faith  and  spirit  of  such  instruments,  entitles  the  injured 
party  to  indemnity  against  all  injurious  consequences.  Persons 
violating  these  instruments  are  also  subject  to  punishment  by 
the  municipal  laws  of.  the  state  by  which  they  are  issued. 
Section  twenty-eight  of  the  act  of  congress,  approved  April 
30th,  1790,  provides  that  if  any  person  shall  violate  any  safe- 
conduct  or  passport,  duly  obtained  and  issued  under  the  authority 
of  the  United  States,  such  person  so  offending,  on  conviction, 
shall  be  imprisoned  not  exceeding  three  years,  and  fined  at  the 
discretion  of  the  court. 

§  15.  Safe-guards.  Safe-guards  are  protections  granted  by  a 
general  or  other  officer  commanding  belligerent  forces,  for  per- 
sons or  property  within  the  limits  of  their  commands,  and 
against  the  operations  of  their  own  troops.  Sometimes  they 
are  delivered  to  the  parties  whose  persons  or  property  are  to  be 
protected ;  at  others  they  are  posted  upon  the  property  itself,  as 
upon  a  church,  museum,  library,  public  office,  or  private  dwell- 
ing. They  are  particularly  useful  in  the  assault  of  a  place,  or 
immediately  after  its  capture,  or  after  the  termination  of  a 
battle,  to  protect  the  persons  and  property  of  friends  from  destruc- 


CH.  XXVIL— INTERCOURSE  OF  BELLIGERENTS.     289 

tion  by  an  excited  soldiery.  Violations  of  such  instruments  are 
usually  punished  with  the  utmost  severity. 

§  16.  Cartels  for  prisoners.  A  cartel  is  an  agreement  between 
belligerents  for  the  exchange  or  ransom  of  prisoners  of  war. 
The  actual  existence  of  a  war  is  not  essentially  n^essary  to 
give  effect  to  cartels,  but  it  is  sufficient  if  they  are  entered  into 
prospectively  and  in  expectation  of  approaching  hostilities ;  for 
the  occasions  for  them  may  just  as  naturally  arise  from  a  view 
of  approaching  events,  and  parties  may  contract  to  guard  against 
the  consequences  of  hostilities  which  they  may  foresee.  Both 
belligerents  are  bound  to  faithfully  observe  such  compacts,  and 
a  cartel  party  sent  under  a  flag  of  truce  to  carry  into  execution 
the  provisions  of  a  cartel,  is  equally  under  the  protection  of 
both. 

§  17.  Cartel  sMps.  A  cartel  ship,  is  a  vessel  commissioned 
for  the  exchange  or  ransom  of  prisoners  of  war,  or  to  carry 
proposals  from  one  belligerent  to  the  other,  under  a  flag  of  truce. 
Such  commission  and  flag  are  considered  to  throw  over  the 
vessel,  and  the  persons  engaged  in  her  navigation,  the  mantle 
of  peace ;  she  is,  pro  hoc  vice,  a  neutral  licensed  vessel,  and  her 
crew  are  also  neutrals ;  and  so  far  as  relates  to  the  particular 
service  in  which  she  is  employed,  she  is  under  the  protection  of 
both  belligerents.  But  she  can  carry  no  cargo,  and  no  ammuni- 
tion or  implements  of  war,  except  a  single  gun  for  firing 
signals. 

§  18.  Their  rights  and  duties.  The  rights,  immunities  and  duties 
of  cartel  ships,  have  been  matters  of  discussion  and  judicial 
decision  in  prize  courts.  Sir  William  Scott  gave  a  very  elabo- 
rate opinion  on  this  subject,  in  the  case  of  The  Daifjie.  With 
respect  to  the  character  of  the  ships  employed  in  such  service, 
he  says  it  is  generally  immaterial  whether  they  are  merchant 
ships,  or  ships  of  war,  but  there  may  be  extreme  cases  in  which 
the  nature  of  the  ship  might  be  material ;  "  as,  if  a  fire  ship 
was  to  be  sent  on  such  service  to  Portsmouth  or  Plymouth, 
though  she  had  prisoners  on  board,  she  would  undoubtedly  be 
25  2  M 


290        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

an  unwelcome  visitor  to  a  naval  arsenal,  and  her  particular 
character  might  fairly  justify  a  refusal  to  admit  her."  He  was 
also  of  opinion,  that  the  cartel  protected  such  ships,  not  only  in 
trajectu,  adeundum  et  7'edeundum,  but  also  in  going  from  one 
port  to  a|§ther  to  be  fitted  up  and  to  take  prisoners  on  board, 
although  the  passage  of  ships  from  one  port  to  another  of  an 
enemy,  is  liable  to  suspicion. 

§  19.  Ransom  of  prisoners  of  war.  In  the  middle  ages  the  cap- 
tor was  considered  as  having  a  lawful  right  to  demand  a  ransom 
for  the  release  of  his  prisoners,  and  the  money  derived  from  this 
source  was  one  of  the  great  inducements  to  military  service. 
Curious  instances  of  the  importance  which  was  attached  to  this 
consideration  occur  in  history.  Thus,  when  the  Maid  of 
Orleans  was  brought  to  her  disgraceful  trial,  the  advisers  of  the 
measure  thought  it  right  to  pay  her  captors,  whose  property  she 
had  become,  a  sum  equal  to  what  it  was  supposed  they  might 
be  able  to  make  by  her  ransom.  The  practice  of  ransom  gave 
rise  to  certt^in  rules  in  regard  to  the  relations  of  the  captor  and 
his  prisoner,  to  the  sales  and  transfers  of  claims  for  ransom,  and 
to  the  interpretation  of  agreements  of  ransom. 

§  20.  Modem  Contracts  of  ransom.  The  term  ransom  is 
now  usually  applied  to  property  taken  from  an  enemy  in  war, 
and  surrendered  or  restored  to  the  owner  on  the  payment  of,  or 
agreement  to  pay,  a  specified  sum  of  money,  which  is  called  ran- 
som-money. This  term  was  formerly  applied  to  the  redemption 
of  property  captured  on  land,  as  well  as  on  the  high  seas ;  but, 
by  general  use,  it  is  now  understood  to  apply  to  the  agreement 
made  between  the  commander  of  a  captured  vessel  or  cargo,  and 
the  captor,  by  which  the  latter  permits  the  former  to  depart 
with  his  vessel,  and  gives  him  a  safe-conduct,  in  consideration 
of  a  sum  of  money  which  the  former,  in  his  own  name,  and  in 
the  name  of  the  owners  of  the  vessel  and  cargo,  promises  to  pay 
at  a  future  time  named.  This  contract  is  usually  made  in 
writing,  in  duplicate,  one  of  which  is  kept  by  the  captor,  which 
is  properly  called  the  ransom-billj  and  the  other  by  the  captured 


CH.  XXVIL— INTERCOURSE  OF  BELLIGERENTS.       291 

vessel,  which  is  its  safe-conduct  The  general  law  relating  to 
the  ransom  of  captured  property,  was  fully  and  ably  discussed 
by  Story. 

§  21.  In  the  United  States  and  other  countries.  The  contract 
of  ransom  is  considered  in  England  as  tending  to  relax  the 
energy  of  war,  by  depriving  cruisers  of  the  chance  of  recapture, 
and  several  statutes  in  the  reign  of  George  III.  absolutely  pro- 
hibited to  British  subjects  the  privilege  of  ransom  of  property 
captured  at  sea,  unless  in  a  case  of  extreme  necessity,  to  be 
judged  of  by  the  court  of  admiralty.  "  Other  maritime  na- 
tions,'' says  Kent,  "  regard  ransoms  as  binding,  and  to  be  classed 
among  the  few  legitimate  commercia  belli.  They  have  never 
been  prohibited  in  this  country,  and  the  act  of  Congress  of 
August  2d,  1813,  interdicting  the  use  of  British  licenses,  or 
passes,  did  not  apply  to  the.  contract  of  ransom." 

§  22.  K  given  by  one  ally,  is  binding  upon  the  others.  Con- 
tracts of  ransom  are  binding  on  allies.  "  From  the  very  nature 
of  the  connection  between  allies,"  says  Kent,  "  their  compacts 
with  the  common  enemy  must  bind  each  other,  when  they  tend 
to  accomplish  the  objects  of  the  alliance.  If  they  did  not,  the 
ally  wo^ild  reap  all  the  fruits  of  the  compact,  without  being 
subject  to  the  terms  and  conditions  of  it ;  and  the  enemy  with 
whom  the  agreement  was  made  would  be  exposed,  in  regard  to 
the  ally,  to  all  the  disadvantages  of  it,  without  participating  in 
the  stipulated  benefits.  Such  an  inequality  of  obligation  is 
contrary  to  every  principle  of  reason  and  justice." 

§  23.  If  ransomed  vessel  be  lost.  As  a  general  rule,  the  cap- 
tor, by  the  safe-conduct  implied  in  a  ransom-bill,  simply  gua- 
rantees the  ransomed  vessel  against  being  interrupted  in  its 
course,  or  retaken  by  other  cruisers  of  its  own  nation  or  of  its 
allies,  but  not  against  loss  by  the  perils  of  the  sea.  There  is  no 
implied  insurance  in  the  ransom-bill  against  such  losses.  If, 
therefore,  the  ransomed  vessel  should  founder  at  sea,  or  be 
wrecked,  and  become  a  total  loss,  the  contract  is  still  binding, 
and  the  ransom-bill  payable  to  the  captor.     But  it  is  sometimes 


292        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

specified  in  the  contract  of  ransom,  that  the  loss  of  the  vessel 
by  the  perils  of  the  sea  shall  discharge  the  captured  party  from 
the  payment  of  the  ransom ;  such  a  clause  is  restrained  to  the 
case  of  a  total  loss  on  the  high  seas,  and  is  not  extended 
to  stranding,  which  might  afford  the  master  a  temptation  to 
fraudulently  cast  away  his  vessel,  in  order  to  save  the  most 
valuable  part  of  his  cargo,  and  avoid  the  payment  of  the 
ransom. 

§  24.  If  it  be  recaptured.  If  the  ransomed  vessel  should 
exceed  the  time,  or  deviate  from  the  course,  prescribed  in  the 
contract,  she  forfeits  her  safe-conduct,  and  is  liable  to  recapture ; 
and  if  retaken,  the  debtors  of  the  ransom  are  discharged  from 
their  obligation,  which  is  merged  in  the  prize  and  the  amount 
is  deducted  from  the  net  proceeds  thereof  and  paid  to  the  first 
captor,  whilst  the  residue  is  paid  to  the  second  captor.  But 
any  variation  from  the  course  prescribed,  or  the  time  limited, 
by  the  contract,  caused  by  the  stress  of  weather,  or  unavoidable 
necessity,  does  not  work  a  forfeiture  of  the  safe-conduct.  If  the 
captor,  after  having  ransomed  an  enemy's  vessel,  is  himself 
taken  by  the  enemy,  together  with  the  ransom-bill  of  which  he 
is  the  bearer,  this  ransom-bill  becomes  a  part  of  the^capture 
made  by  the  enemy ;  and  the  persons  of  the  hostile  nation,  who 
were  debtors  of  the  ransom,  are  thereby  discharged  from  their 
obligation  under  the'  ransom-bill.  But  questions  relating  to 
maritime  captures  and  recaptures,  will  be  more  particularly 
considered  in  the  chapter  on  the  rights  and  duties  of  captors. 

§  25.  If  hostage  be  captured.  Sometimes  a  hostage  is  taken 
for  the  faithful  performance  of  the  contract  on  the  part  of  the 
captured.  The  death  or  the  recapture  of  the  hostage,  does  not 
discharge  the  contract  or  ransom,  unless  there  is  an  exi)ress  stipu- 
lation to  that  effect ;  for  the  captor  takes  the  hostage  only  as  a 
collateral  security,  and  the  loss  of  such  collateral  security  does 
not  cancel  the  contract,  or  discharge  the  debtor  from  his  obliga- 
tion to  pay  the  ransom. 

§  26.  Suits  on  contracts  of  ransom.     Contracts  of  ransom,  like 


CH.  XXVII.— INTERCOURSE  OF  BELLIGERENTS.       293 

all  other  agreements  arising  jure  belli,  and  lawfully  entered  into 
between  belligerents,  suspend  the  character  of  enemy,  so  far  as 
respects  the  parties  to  the  contract?  There  can,  therefore,  be 
no  just  reason  why  the  captor  should  not  bring  suit  directly  on 
the  ransom-bill.  And  such  appears  to  be  the  practice  in  the 
maritime  courts  of  the.  European  continent.  The  English 
courts,  however,  have  decided  that  the  subject  of  an  enemy  is 
not  permitted  to  sue  in  the  British  courts  of  justice,  in  his  own 
proper  person,  for  the  payment  of  a  ransom,  on  the  technical 
objection  of  the  want  of  a  persona  standi  in  jvdido.  This 
technical  objection  is  not  based  on  principle,  nor  supported 
by  reason,  and  the  decision  has  not  the  sanction  of  general 
usage. 

§  27.  Flags  of  truce.  As  flags  of  truce  are  sometimes  sent 
from  the  enemy  to  forces  in  position,  or  on  the  march,  or  in 
action,  nominally  for  making  some  convention,  as  for  a  suspen- 
sion of  arms,  but  really  with  the  design  of  gaining  information, 
it  is  proper  that  restrictions  should  be  placed  upon  its  use. 
Thus,  if  sent  to  an  army  in  position,  the  bearer  of  said  fiag 
should  never  be  allowed  to  pass  the  outer  line  of  sentinels,  nor 
even  to  approach  within  the  range  of  their  guns,  without  per- 
mission. If  warned  away,  and  he  should  not  instantly  depart, 
he  may  be  fired  on.  Similar  precautions  may  be  taken  by  an 
army  on  the  march.  If  the  flag  proceeds  from  the  enemy's 
lines  during  a  battle,  the  ranks  which  it  leaves  must  halt  and 
cease  their  fire.  When  the  bearer  displays  his  flag,  he  will  be 
signalled  by  the  opposing  force,  either  to  advance  or  to  retire ; 
if  the  former,  the  forces  he  approaches  will  cease  firing ;  if  the 
latter,  he  must  instantly  retire ;  for,  if  he  should  not,  he  may 
be  fired  upon.  It  is  very  rare  that  a  bearer  of  a  flag  of  truce  is 
admitted  during  an  engagement,  and  if  admitted,  it  is  no  breach 
of  faith  to  retain  him  until  the  battle  is  terminated.  If  while 
so  presenting  himself  during  an  engagement  he  is  killed  or 
wounded  it  furnishes  no  ground  of  complaint.  His  appearance 
at  such  a  time  is  at  his  own  peril.     If  it  be  fairly  proved  that  a 

25* 


294        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

flag  of  truce  has  been  abused  for  surreptitiously  obtaining  mili- 
tary knowledge,  the  bearer  of  the  flag  thus  abusing  his  sacred 
character  is  deemed  a  spy.  In  entering  the  territory  of  an 
enemy,  or  territory  occupied  by  him,  it  is  the  duty  of  the  bearer 
of  a  flag  of  truce  to  present  himself  at  the  nearest  military  post; 
if  he  should,  by  avoiding  such  posts,  Attempt  to  penetrate  into 
the  interior  of  the  country  or  to  reach  the  headquarters  of  the 
commander,  or  some  other  important  position,  it  will  be  pre- 
sumed that  he  does  this  for  an  improper  purpose.  Where 
despatches  are  presented  under  a  flag  of  truce  they  are  to  be 
receipted  for  and  the  bearer  retained  at  the  outer  post  or  line 
for  an  answer,  or  he  is  sent  back,  and  the  answer  returned  by 
another  flag. 

§  28.  Flags  of  protection.  It  is  customary  to  designate  by 
certain  flags,  (usually  yellow)  the  hospitals  in  places  which  are 
shelled,  so  that  the  besieging  enemy  may  avoid  firing  on  them. 
The  same  has  been  done  in  battles,  when  hospitals  are  situated 
within  the  field  of  the  engagements.  An  honorable  belligerent 
will  allow  himself  to  be  guided  by  such  flags  or  signals 
of  protection  as  much  as  the  contingencies  and  the  neces- 
sities of  the  contest  will  permit.  But  as  such  buildings 
and  places  may  seriously  interfere  with  h^  operations,  it  by  no 
means  follows  that  all  those  so  designated  are  to  be  spared.  The 
besieging  belligerent  sometimes  requests  the  besieged  to  desig- 
nate by  flags,  his  hospitals,  and  also  buildings  exclusively  de- 
voted to  science  and  art,  as  museums,  picture  galleries,  astro- 
nomical observations,  etc.,  so  that  their  destruction  may  be 
avoided  as  much  as  possible.  But  this  is  by  no  means  obliga- 
tory. The  commander  must  be  governed  by  the  particular  cir- 
cumstances of  the  case.  Sometimes  it  would  be  injurious  to  his 
plans  to  permit  the  enemy  to  receive  any  notice  of  his  intended 
attack.  To  deceive  an  enemy  by  flags  of  protection,  or  to  use 
them  for  an  improper  purpose,  as  to  protect  his  own  efiective 
men  or  stores,  to  cover  a  weak  point,  to  fire  from  places  so  de- 
signated upon  the  attacking  party,  to  use  them  as  look-outs  for 


CH.  XXVIL— INTERCOURSE  OF  BELLIGERENTS.       295 

observing  his  opponent's  strength  and  movements, — ^all  such  acts 
are  justly  considered  as  infamous,  and  a  breach  of  good  faith. 
The  guilty  parties,  if  captured,  are  not  entitled  to  the  privileges 
of  prisoners  of  war,  but  may  be  punished  for  violation  of  the 
laws  of  war. 


CHAPTER    XXVIII. 

LICENSES  TO  TRADE. 

§  1.  Licenses  to  trade.  A  license  is  a  kind  of  safe  conduct, 
granted  by  a  belligerent  state  to  its  own  subjects,  to  those  of  its 
enemy,  or  to  neutrals,  to  carry  on  a  trade  which  is  interdicted 
by  the  laws  of  war,  and  it  operates  as  a  dispensation  from  the 
penalties  of  those  laws,  with  respect  to  the  state  granting  it, 
and  so  far  as  its  terms  can  be  fairly  construed  to  extend. 

§  2.  A  general  license.  A  general  license  is  a  suspension  or 
relaxation  of  the  exercise  of  the  rights  of  war,  generally  or 
partially,  in  relation  to  any  community  or  individuals,  liable  to 
be  affected  by  their  operation.  It  must  emanate  from  the  sove- 
reignty of  the  state,  for  the  supreme  authority  alone  is  compe- 
tent to  decide  what  considerations  of  political  or  commercial 
expediency  will  justify  a  suspension  or  relaxation  of  its  belli- 
gerent rights. 

§  3.  A  special  license.  For  the  same  reasons,  a  special  license 
to  individuals  for  a  ])articular  voyage,  or  for  the  importation  or 
exportation  of  particular  goods,  must,  as  a  general  rule,  also 
emanate  from  the  supreme  authority  of  the  state.  But  there 
are  exceptions  to  this  rule  growing  out  of  the  particular  circum- 
stances of  the  war  in  particular  places.  The  governor  of  a 
province,  the  general  of  an  army,  or  the  admiral  of  a  fleet,  may 
grant  licenses  to  trade  within  the  limits  of  their  own  commands, 
and  such  documents  are  binding  upon  them  and  upon  all  per- 
sons who  are  under  their  authority,  but  they  aiford  no  protec- 
tion beyond  the  limits  of  the  authority  of  those  who  issue  them. 
Thus,  in  the  war  between  the  United  States  and  the  Republic 

296 


CH.  XXVIIL— LICENSES  TO   TRADE.  297 

of  Mexico,  the  governor  of  California  and  the  commander  of 
the  Pacific  squadron,  issued  such  licenses,  but  it  was  not  pre- 
tended that  such  protection  extended  beyond  the  limits  of  their 
respective  commands.  The  peculiar  circumstances  of  the  case, 
the  great  distance  from  the  seat  of  the  supreme  federal  authority, 
the  scarcity  of  provisions  and  supplies,  and  the  want  of  Amei- 
can  vessels  on  that  coast,  were  deemed  sufficient  reasons  for  the 
exercise  of  that  power. 

§  4.  Judicial  decisions  on  licenses.  There  are  but  few  Ameri- 
can decisions  on  this  subject,  while  numerous  cases  are  reported 
in  British  courts  of  admiralty  and  of  common  law.  Unfor- 
tunately, however,  there  is  a  great  want  of  miiformity  in  the 
decisions. 

§  5.  Cause  of  want  of  uniformity  in  English  decisions.  Mr. 
Duer  has  pointed  out  and  commented  on  the  causes  of  this 
irregularity.  Prior  to  the  peace  of  Amiens,  licenses  were  re- 
garded as  an  act  of  special  grace,  and  most  strictly  interpreted, 
but,  on  the  renewal  of  the  war,  the  issuing  of  licenses  by  Eng- 
land was  regarded  as  a  matter  of  national  policy,  rather  than 
personal  favor.  The  courts,  in  consideration  of  this  policy, 
gave  to  these  instruments  the  largest  interpretation  possible. 
"  Most  of  the  reported  cases  on  the  subject  of  licenses,  were 
decided  during  the  period  that  this  liberal  doctrine  prevailed, 
and  in  many  of  them  it  is  a  matter  of  extreme  difficulty  to  say, 
whether  the  determination  was  governed  by  the  peculiar  circum- 
stances and  character  of  the  war,  or  by  reasons  of  general  and 
permanent  application." 

§  6.  Representations  of  grantee.  The  validity  of  a  license 
depends  not  only  on  the  sufficiency  of  the  authority  by  which 
it  is  granted,  but  also  on  the  good  faith  of  the  party  to  whom 
it  is  issued.  Like  every  other  grant,  although  issued  in  due 
form,  and  by  the  proper  authority,  a  license  may  be  vitiated  by 
fraudulent  conduct  in  obtaining  it.  The  misrepresentation  or 
suppression  of  material  facts — of  facts  that,  if  known,  would 
probably  have  influenced  the  discretion  of  the  grantor — renders 

2N 


298        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

the  license  a  nullity,  and  exposes  the  property  it  is  invoked  to 
protect  to  certain  condemnation. 

§  7.  Intention  of  grantor.  Although  a  license  may  have  been 
issued  by  competent  authority,  and  on  the  good  faith  of  the 
party  obtaining  it,  in  order  to  render  it  available  for  the  protec- 
tion of  the  property  to  which  it  relates,  the  intentions  of  the 
grantor,  as  expressed  in  the  license,  must  be  pursued  in  its  mode 
of  execution,  and  there  must  be  an  entire  good  faith  on  the  part 
of  the  user,  in  executing  it. 

§  8.  Persons  entitled  to  use  a  license.  The  first  material  cir- 
cumstance to  be  considered  in  the  execution  of  a  license,  with 
respect  to  the  intentions  of  the  grantor  and  the  good  faith  of 
the  user,  is,  ilie  persoTis  entitled  to  use  it.  A  license  is  not  a 
subject  of  transfer  or  assignment,  unless  made  so  by  express 
terms.  If  it  be  by  express  words,  made  negotiable,  or  if  no 
mention  whatever  is  made  of  the  persons  upon  whose  applica- 
tion it  is  granted,  or  by  whom  it  is  to  be  used,  it  is  a  legitimate 
subject  of  transfer  and  sale,  and  the  purchaser  is  as  fully  pro- 
tected as  if  it  had  been  granted  to  him  on  his  personal  appli- 
cation. 

§  9.  Where  the  grantee  acts  as  agent  for  others.  But  where 
the  license  is  not  made  negotiable,  and  the  persons  named  in 
the  license  obtained  it  in  their  own  names  and  not  as  the  repre- 
sentatives and  agents  of  others — ^the  license  being  for  themselveSj 
their  agents,  or  holders  of  their  bills  of  lading — it  cannot  protect 
the  property  of  others  for  whom  the  grantees  act  as  agents,  and 
in  which  they  are  not  interested.  Thus,  a  license  to  B.  &  S. 
and  their  agents  will  not  protect  the  property  of  others  for  whom 
B.  &  S.  may  see  fit  to  act  as  agents.  But  where  a  license  is  issued  to 
B.  S.  &  Co.,  meaning  under  that  denomination  to  include  persons 
who  had  agreed  to  take  part  in  the  shipment  made  under  such 
license,  such  persons  are  held  to  be  protected. 

§  10.  Character  of  vessel  The  second  point  to  be  considered, 
in  determining  upon  the  proper  execution  of  a  license,  is,  the 
charocter  of  the  vessel.     The  national  character  of  the  ship,  as 


CH.  XXVIIL— LICENSES  TO   TRADE.  299 

described  in  the  license,  is,  in  most  cases,  a  condition  necessary 
to  be  fulfilled.  Where  the  license  directs  the  employment  of  a 
neutral  vessel  belonging  to  a  particular  nation,  the  substitution 
of  a  neutral  ship  of  a  different  state,  standing  in  the  same 
political  relations  to  the  belligerent  powers,  would,  probably, 
not  be  regarded  as  prejudicial.  The  same  may  be  said  of  the 
employment  of  two  ships,  when  the  terms  of  the  license  refer 
only  to  one,  if  both  vessels  bear  the  same  national  character, 
and  there  be  no  variation  in  the  quantity  or  quality  of  the 
goods  described  in  the  license.  But,  in  both  these  changes,  a 
good  and  satisfactory  cause  must  be  shown.  If  a  neutral  ship 
is  mentioned  in  the  license,  the  employment  of  a  ship  of  the 
state  issuing  the  license  is  considered  an  essential  deviation,  which 
will  lead  to  a  condemnation.  So,  the  employment  of  a  ship 
belonging  to  the  enemy,  when  not  authorized  by  the  license,  is, 
in  all  cases  noxious  and  fatal. 

§  11.  Exception  of  a  particular  flag.  When  the  license  au- 
thorizes the  transportation  of  goods  by  any  ship  or  ships  except 
thase  under  the  flag  of  a  particular  nation,  the  exception  refers 
to  the  fact  of  the  nationality  of  the  ship,  and  not  merely  to  the 
external  signs.  Although  the  vessel  may  be  documented  as 
belonging  to,  and  actually  bear  the  flag  of,  another  state,  if  it 
be  shown  that  she  really  belonged  to  the  excepted  nation,  she 
will  not  be  protected  by  the  license  and  the  flag.  The  reason 
of  this  rule  is,  that  vessels  of  the  excepted  nation  might  other- 
wise engage  in  the  prohibited  navigation,  by  substituting  a 
foreign  flag  for  their  own.  But  the  unauthorized  employment 
of  such  excepted  vessels  is  not  permitted  to  affect  the  goods  of 
shippers  wlio  were  not  privy  to  the  deception,  or  cognizant  of 
the  fact.  Where  there  is  no  ground  for  imputing  to  them  a 
voluntary  departure  from  the  conditions  of  the  license  in  this 
respect,  their  property,  if  embraced  by  its  terms,  retains  its 
protection.     The  vessel  itself  is  condemned. 

§  12.  Change  of  national  character  during  voyage.  Again,  if 
the  vessel  was,  in  fact,  not  of  the  excepted  nation  when  she 


300        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

sailed,  but  became  so  during  the  voyage,  by  some  unexpected 
change  of  circumstances,  as  the  conquest  or  annexation  of  the 
country  to  which  she  belongs,  by  the  excepted  state,  such  change 
of  political  relations  will  not  deprive  her  of  the  protection  of 
the  license,  where  the  parties  have  acted  fairly  under  it.  Thus, 
where  the  license  was  for  a  ship  bearing  any  other  flag  than  that 
of  France,  and  the  owners  had  become  French  subjects  during 
the  voyage  by  the  sudden  annexation  to  France  of  the  port  and 
territory  in  which  they  resided,  it  was  held  by  Sir  Wm.  Scott, 
that  the  ship  continued  under  the  protection  of  the  license,  not- 
withstanding this  change  of  national  character. 

§  13.  Protection  before  and  after  voyage.  A  license  to  a 
vessel  to  import  a  particular  cargo,  is  held  to  protect  a  vessel, 
in  ballast,  on  her  way  to  the  port  of  lading,  for  the  express 
purpose  specified  in  the  license.  So,  also,  a  license  to  export  a 
cargo  to  an  enemy's  port,  covers  the  ship,  in  ballast,  on  her 
return.  In  each  of  these  cases  the  voyage  to  which  the  license 
is  extended  by  implication,  has  a  necessary  connection  with  that 
to  which  it  expressly  relates.  But  the  protection  extends  no 
further  than  is  necessarily  implied  in  the  license ;  the  taking  of 
any  part  of  a  cargo  on  board  in  the  outward  voyage  in  the  case 
of  importation,  or  in  the  return  voyage  in  the  case  of  exporta- 
tion, subjects  both  ship  and  goods  to  confiscation. 

§  14.  Quality  and  quantity  of  goods.  The  tJiird  point  to  be 
considered  in  the  execution  of  a  license  is,  the  quality  and  quan- 
tity of  goods  it  protects.  A  small  excess  in  quantity,  or  the 
partial  substitution  of  those  of  a  different  quality,  if  free  from 
the  imputation  of  concealment  or  fraud,  will  not  absolutely 
vitiate  the  license,  under  the  color  of  which  they  were  introduced. 
The  goods  not  protected  by  it  are  condemned,  while  those  which 
it  is  admitted  to  embrace,  are  restored. 

§  15.  Protection  to  enemy's  goods.  It  was  at  one  time  held, 
that  express  words  were  necessary  to  protect  the  property  of  an 
enemy;  but  it  was  finally  decided  by  the  court  of  exchequer 
chamber,  that  a  license  containing  the  words,  "  to  whomsoever 


CH.  XXVIIL— LICENSES  TO  TRADE.  801 

the  property  may  appear  to  belong,"  included  goods  shipped  on 
account  of  enemy's  subjects.  But  Mr.  Duer  expresses  a  doubt 
whether  this  last  decision  was  not  to  be  referred  to  the  peculiar 
circumstances  of  the  war,  and  to  be  regarded  as  the  fruits  of  the 
extreme  liberality  of  construction  which  prevailed  in  England 
at  that  particular  time. 

§  16.  License  to  an  alien  enemy.  A  license  to  an  alien  enemy, 
removes  all  his  personal  disabilities,  so  far  as  is  necessary  for  his 
protection  in  the  particular  trade  which  is  rendered  lawful  by 
the  operation  of  the  license.  In  respect  to  the  voyage  and  trade 
which  the  license  is  intended  to  authorize  and  cover,  he  is  not  to 
be  regarded  as  an  enemy,  but  has  all  the  legal  privileges  of  a 
subject.  So  far  as  that  particular  voyage,  trade,  or  cargo  is 
concerned,  he  has  a  persoim>  standi  in  all  the  courts,  and  may 
maintain  suits  in  his  own  name,  the  same  as  a  subject. 

§  17.  If  cargo  be  injured.  The  protection  of  a  license  is  not 
limited,  in  all  cases,  to  the  cargo  originally  shipped ;  for  if  the 
original  cargo  should  be  accidentally  injured  or  spoiled,  it  may 
be  replaced  by  a  second  one,  preeisely  corresponding  with  that 
described  in  the  license. 

§  18.  If  it  cannot  be  landed.  A  license  to  export  goods  to  an 
enemy's  port,  although  limited  in  terms  to  the  outward  voyage, 
is  sufficient  to  protect  both  ship  and  cargo  on  the  return,  if  the 
delivery  of  the  goods  at  the  port  of  destination  was  prevented 
by  some  unavoidable  accident,  as  a  blockade,  or  a  reasonable 
apprehension  of  seizure.  But  to  entitle  himself  to  the  benefit 
of  this  liberal  construction,  the  claimant  must  prove  that  the 
goods  brought  back  are  the  identical  goods  exported  under  the 
license. 

§  19.  Compulsory  change  of  cargo.  It  is  never  admitted  as  a 
valid  excuse  for  receiving  on  board  goods  not  permitted  in  the 
license,  that  compulsion  had  been  used  by  the  hostile  govern- 
ment, and  that  they  were  received  only  to  avoid  the  seizure  of 
the  vessel.  If  such  an  excuse  were  admitted,  it  would  open  the 
door  to  fraud  and  collusion,  as  it  would  be  difficult,  if  not  ini- 

2() 


302        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

possible,  to  discover  whether  such  a  transaction,  taking  place  in 
an  enemy^s  port,  was  voluntary  or  not. 

§  20.  License  to  import  no  protection  for  re-exportation.  Where 
a  license  is  given  expressly  for  importation,  it  is  held  that  it  can 
be  used  for  that  purpose  only,  and  not  for  re-exportation. 
Although  the  application  should  be  made  for  a  license  to  import, 
for  the  particular  and  special  purpose  of  re-exportation,  the 
permission  to  import  would  extend  no  further  than  was  expressed 
in  the  instrument  itself. 

§  21.  Course  of  voyage.  T\\q  fourth  point  to  be  considered, 
in  determining  the  due  execution  of  the  license,  is,  the  course 
and  route  of  the  voyage.  The  requisitions  of  a  license  as  to  the 
port  of  shipment  or  delivery,  of  departure  or  destination,  must 
be  strictly  followed.  The  same  may  be  said,  in  general,  with 
respect  to  the  course  of  the  voyage.  Any  deviation  from  the 
prescribed  course  of  the  voyage,  if  produced  by  stress  of 
weather,  or  other  unavoidable  accident,  does  not  invalidate  the 
license;  if  the  necessity  be  proved,  it  is  deemed  a  valid 
excuse. 

§  22.  Change  of  destination.  An  enemy's  ship  and  cargo, 
belonging  to  the  same  owner,  and  licensed  to  go  to  Dublin, 
were  taken  going  to  Leith,  a  place  not  named  in  the  license,  and 
to  be  reached  by  a  course  totally  different  from  that  indicated ; 
both  ship  and  cargo  were  condemned.  Tlie  party  not  being 
Avithin  the  terms  of  the  license,  the  character  of  enemy  revives, 
and  the  property,  thus  become  hostile,  is  subject  to  the  ordinary 
rule  of  confiscation. 

§  23.  Intended  ulterior  destination.  An  intended  ulterior  desti- 
nation does  not  vitiate  the  protection  of  a  license,  if  the  parties 
keep  within  the  terms  expressed  and  intended  by  the  instrument. 
Thus,  a  vessel  with  a  license  to  import  a  cargo  into  Leith  from 
a  port  of  the  enemy,  with  an  ulterior  destination  to  Bergen.  It 
was  held  that  such  ulterior  destination  did  not  vitiate  the  license 
for  tlie  voyage  to  Leith ;  but  had  the  vessel  been  captured  after 
completing  the  licensed  part  of  the  voyage,  and  on   the  way 


CH.  XXVIIL— LICENSES  OF  TRADE.  803 

from  Leith  to  Bergen,  the  license  would  have  afforded  her  no 
protection. 

§  24.  Condition  to  call  for  convoy.  The  condition  introduced 
in  the  license,  that  the  vessel  shall  stop  at  a  particular  port  for 
convoy,  is  regarded  as  fundamental,  and  the  breach  of  it  as  fatal. 
The  reason  for  introducing  the  condition  is,  that  the  vessel  may 
be  subject  to  inspection  in  that  part  of  her  navigation.  In  case 
where  the  admiral  under  whose  direction  the  convoy  is  to  be 
furnished  orders  a  deviation  for  the  purpose  of  taking  convoy 
at  another  place,  the  court  felt  itself  bound  to  uphold  the  acts 
of  the  admiral.  Such  a  deviation  was  placed  on  the  same  ground 
as  that  caused  by  stress  of  weather. 

§  25.  Capture  before  and  after  deviation.  The  effect  of  a 
deviation  from  the  direct  voyage  described  in  the  license,  by 
touching  at  an  intermediate  port,  depends  in  some  degree  upon 
the  time  of  capture.  If  such  vessel  be  seized  on  l^r  way  to 
such  intermediate  port,  the  presumption  of  law  is,  that  she  was 
going  thither  for  the  purpose  of  violating  the  license.  But  if 
taken  after  leaving  the  intermediate  port,  with  the  identical 
cargo  which  she  carried  in,  and  while  actually  proceeding  for 
her  lawful  destination,  the  presumption  of  mola  fides  would  be 
removed. 

§  26.  Time  limited  in  license.  The  fifth  point  to  be  considered 
is,  the  time  limited  in  the  license.  There  is  a  material  distinction 
between  the  construction  of  a  license  for  the  exportation  of 
goods  to  an  enemy's  port,  and  one  for  an  importation  merely. 
Where  the  license  requires  that  the  goods  to  which  it  relates 
shall  be  exported  on  or  before  a  certain  day,  a  delay  for  a  single 
day  beyond  that  which  is  specified,  renders  the  license  wholly 
void.  But  not  so  with  respect  to  importations.  If  the  party 
having  a  license,  be  prevented  from  commencing  the  voyage,  or 
be  delayed  in  its  prosecution  by  stress  of  weather,  the  acts  of  a 
hostile  government,  or  other  similar  cause,  over  which  he  has 
no  control,  the  time  thus  consumed,  is  not  to  be  considered  in 
computing  the  period  that  the  government  intended  to  allow. 


304        INTERNATIONAL    LAW  AND  LAWS  OF  WAR. 

But  if  he  takes  upon  himself,  at  his  own  discretion,  to  extend 
the  period  specified,  he  loses  the  protection  to  which  he  would 
otherwise  have  been  entitled. 

§  27.  A  license  has  no  retrospective  action.  A  license  does  not 
act  retrospectively,  and  cannot  take  away  any  interest  which  is 
vested  by  law  in  the  captors.  Thus,  a  vessel  was  captured  on 
the  24th  of  January,  with  an  expired  license  on  board.  Ajiother 
license  was  obtained,  and  its  date  carried  back  to  January  20th. 
It  was  held  by  the  court,  that  the  vessel  at  the  time  of  capture 
was  not  protected  either  by  the  license  which  had  expired,  or  by 
that  subsequently  obtained. 

§  28.  If  not  on  board  or  not  endorsed.  Moreover,  a  license, 
not  on  board  at  the  time  of  capture,  but  afterwards  endorsed 
for  it  by  the  shipper,  is  no  protection.  If  tlie  license  is  general 
in  its  terms,  the  mere  fact  of  its  being  found  on  board  is  not 
sufficient,  unless  it  has  been  appropriated  to  such  ship  by  an 
endoi'sement  to  that  effect,  or  by  some  positive  evidence  that 
this  application  was  intended  by  the  parties  entitled  to  its  use. 

§  29.  If  its  date  be  altered.  A  license  is  vitiated  and  becomes 
a  mere  nullity  by  an  alteration  of  its  date.  In  this  respect, 
licenses  are  governed  by  the  same  rules  as  other  grants  issued 
by  the  supreme  power  of  the  state ;  they  are  utterly  vitiated  by 
any  fraudulent  alteration,  and  any  change  is  prima  facie  fraudu- 
lent.    It  may,  however  be  explained. 

§  30.  Breach  of  blockade,  etc.,  by  a  licensed  vessel.  A  license 
to  trade  with  a  port  of  the  enemy,  does  not  serve  as  a  protec- 
tion for  a  breach  of  blockade,  in  case  the  port  is  blockaded ; 
nor  does  it  afford  any  protection  for  carrying  goods  contraband 
of  war,  enemy's  dispatches,  or  military  persons,  or  for  a  resist- 
ance of  the  right  of  visitation  and  search ;  in  fine,  it  can  cover 
no  act  not  expressly  mentioned  in  the  license  or  implied  as  a 
means  necessary  for  its  execution. 


CHAPTER  XXIX. 

DETERMINATION  OF  NATIONAL  CHARACTER. 

§  1.  National  character,  how  determined.  National  charaxiter 
may  be  determined  from  origin,  naturalization,  domicil,  resi- 
dence, trade,  or  other  circumstances. 

§  2.  Allegiance  from  origin.  That  which  results  from  birth 
or  parentage,  follows  the  individual  wherever  he  may  be,  till  it 
is  changed  in  one  of  the  modes  established  or  recognized  by 
Iciw :  such  as  expatriation,  naturalization,  domiciliation,  etc. 
Native  allegiance  is  a  legal  incident  of  birth,  and  is  the  implied 
fidelity  and  obedience  due  from  every  person  to  the  political 
sovereignty  under  which  he  is  born.  This  is  a  principle  of 
universal  law,  and  is  sanctioned  alike  by  international  jurispru- 
dence and  by  the  municipal  codes  of  all  countries. 

§  3.  Naturalization.  But  at  the  same  time  all  states  claim 
and  exercise,  as  an  incident  of  their  sovereignty,  the  right  to 
naturalize  any  foreign  resident  within  their  jurisdiction. 

§  4.  Apparent  conflict  between  allegiance  and  naturalization. 
There  is  an  apparent  inconsistency  in  these  two  rules,  for  how 
can  any  particular  state,  by  its  municipal  law,  qualify  a  general 
maxim  of  international  jurisprudence,  or  prevent  the  applica- 
tion to  its  own  subjects,  of  an  established  principle  of  public 
law  ?  This  inconsistency,  however,  is  more  apparent  than  real. 
It  must  be  remembered,  that  although  international  law  recog- 
nizes the  right  of  one  state  to  naturalize  or  adopt  the  subjects 
of  another,  it  is  not  in  virtue  of  this  'public  laio  that  such  citizen 
is  naturalized  or  adopted,  but  by  virtue  of  tlie  positive  or  munici- 
pal law  of  tJie  country y  which  naturalizes  or  adopts  them.     The 

26  *  2  0  305 


306        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

newly  made  citizen  is  entirely  the  creature  of  municipal  law, 
and  is  invested  only  with  such  rights,  privileges,  and  immuni- 
ties as  that  law  is  capable  of  conferring  upon  him.  So,  on  the 
other  hand,  while  international  law  recognizes  the  right  of  one 
state  to  retain  the  allegiance  of  its  subjects,  or  to  expatriate 
them,  the  tie  which  binds  them  is  not  formed,  or  its  nature 
determined,  by  public  law,  but  by  the  municipal  code  of  such 
state.  As  the  municipal  law  makes  the  citizen  by  naturalization, 
so,  also,  it  retains  or  unmakes  him,  by  retaining  or  dissolving  his 
allegiance. 

§  5.  Allegiance  does  not  affect  personal  domicll.  But  whatever 
may  be  thought  of  the  effect  of  the  doctrine  of  allegiance  upon 
the  national  character  of  the  subject  within  his  native  state,  it 
certainly  can  produce  no  effect  without  the  limits  of  its  jurisdic- 
tion, for,  even  admitting  that  doctrine  in  its  full  extent,  the 
obligations  resulting  therefrom  are  binding  only  within  the  state 
to  which  the  individual  originally  belonged,  without  affecting, 
with  reference  to  his  adopted  country,  the  validity  of  his  natu- 
ralization there.  And  the  nationality  thus  assumed  must, 
according  to  the  rules  of  international  jurisprudence,  be  recog- 
nized by  all  other  states  except  that  which  claims  his  primitive 
allegiance,  until  it  is  again  changed  by  the  municipal  code  of 
some  state  within  whose  jurisdiction  he  may  eventually  place 
himself.  Nor  does  this  abstract  question  of  native  allegiance 
affect  national  character,  as  determined  by  personal  domicil ; 
for  it  is  a  general  rule  of  public  law,  that  every  person  of  full 
age  has  a  right  to  change  his  nationality  by  choosing  another 
domicil. 

§  6.  Nor  commercial  domicil.  The  national  character  of  a 
merchant  is  determined  by  his  commercial  domicil,  and  not  by 
the  country  to  which  his  allegiance  is  due,  either  by  his  birth, 
or  by  his  subsequent  naturalization  or  adoption.  He  is  regarded 
as  a  political  member  of  the  nation  into  which,  by  his  residence 
and  business,  he  is  incorporated,  and  as  a  subject  of  the  govern- 
ment which  protects  him  in  his  pursuits,  and  to  the  support  of 


CH.  XXIX.— NATIONAL  CHARACTER.  307 

which  he  contributes  by  his  property  and  his  industry.  This 
rule  of  decision  is  adopted  both  in  prize  courts  and  in  courts  of 
common  law,  and  is  applied,  in  a  belligerent  country,  to  its  own 
native  subjects,  as  well  as  to  those  of  a  neutral  power. 

§  7.  Domicil  defined.  Phillimore  says ;  "  Domicil  answers 
very  much  to  the  common  meaning  of  our  word  liome,  and 
where  a  person  possessed  two  residences,  the  phrase  he  made  the 
latter  his  home,  would  point  out  that  to  be  his  domicil."  He, 
however,  considers  the  definition  of  Judge  Rush,  in  the  Ameri- 
can case  of  Guier  v.  Daniel,  as  the  best,  viz :  "  A  residence  at 
a  particular  place,  accompanied  with  positive  or  presumptive 
proof  of  intention  to  remain  there  for  an  unlimited  time." 

§  8.  Divisions  of  domiciL  Various  divisions  have  been  made 
by  the  different  writers  who  have  treated  of  domicil.  Some 
authors  who  have  divided  it  into  two  kinds,  principal  and  accir- 
dental,  the  former  being  the  centre  of  his  affairs,  and  the  latter 
his  place  of  residence  for  a  part  of  his  time,  or  for  a  particular 
purpose.  Another  division  is  into  personal  and  commercial,  the 
former  having  reference  to  his  personal  or  actual  residence,  and 
the  latter  to  his  place  of  business  or  trade.  Kent  says :  "  There 
is  a  political,  a  civil,  and  a  forensic  domicil."  This  division  is 
sufficiently  explained  by  the  terms  employed.  Others,  again, 
divide  domicil  according  to  birth,  necessity  and  will,  as,  1. 
Domicil  of  Origin,  {JDomicilium  Originis  ;)  2.  Domicil  by  Ope- 
rsition  of  LiSiW,{I)omiciliumNecessarium;)  3.  Domicil  of  Choice, 
(Domicilium  Voluntariiim.) 

§  9.  Intention,  the  controlling  principle.  The  great  controlling 
principle,  however,  in  determining  domicil  is  the  intention  of 
tlie  party.  And  when  his  intention  to  reside  for  an  indefinite 
period  or  permanently,  in  the  place  where  he  is  found,  is  estab- 
lished by  proof,  the  length  or  brevity  of  his  actual  residence  is 
of  no  avail  to  protect  him  from  the  consequences  of  the  national 
character  resulting  from  such  residence. 

§  10.  Necessity  of  some  overt  act.  But  mere  intention,  without 
some  overt  act,  is  not  sufficient  to  determine  domicil,  for  that  in- 


308        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

tention  is  liable  to  be  revoked  every  hour.  Courts  have,  there- 
fore, always  required,  in  such  cases,  something  more  than  a  mere 
verbal  declaration — some  solid  fact,  to  show  that  the  party  is  in 
the  act  of  carrying  that  avowed  intention  into  effect. 

§  11.  Domicil  from  residence.  Where  the  party  has  avowed 
his  intention  with  respect  to  residence,  and  his  acts  have  corres- 
ponded with  such  declaration,  the  question  of  domicil  is  free 
from  embarrassment.  But,  in  most  cases,  no  positive  declara- 
tions of  the  party  whose  domicil  is  in  question  can  be  proved — 
or,  at  least,  none  against  his  own  interests — and,  it  becomes 
necessary  to  deduce  his  intention  from  the  circumstances  of  his 
residence,  occupation,  and  business  relations.  And  these  cir- 
cumstances are  of  so  mixed  and  varied  a  character  as  to  render 
it  impossible  to  embrace  them  all  in  any  general  definition. 

§  12.  Effect  of  domestic  ties.  A  most  material  and  significant 
circumstance  in  determining  the  intention  of  the  party,  is  the 
residence  of  his  family.  If  he  is  married,  and  established  with 
his  family  in  the  country  where  he  is  living,  the  inference  is 
highly  reasonable  that  he  intends  to  reside  there  permanently. 
And,  although  his  family  may  not  be  with  him,  if  he  has  made 
preparations  to  have  them  join  him,  the  same  inference  will  be 
drawn. 

§  13.  Exercise  of  political  rights,  etc.  The  possession  and 
exercise  of  political  rights,  and  the  payment  of  taxes,  were  con- 
sidered by  the  Roman  law  as  strong  tests  of  domicil ;  but  less 
weight  seems  to  be  given  to  these  circumstances  in  England  than 
by  the  civilians.  Nevertheless,  when  taken  in  connection  with 
other  facts,  they  are  not  without  their  influence  in  determining 
national  character  in  war. 

§  14.  Character  and  extent  of  business.  Another  material 
circumstance  by  which  intention  is  determined,  is  the  character 
of  the  trade,  or  business,  in  which  the  party  is  engaged.  If  his 
commercial  enterprises  have  their  origin  and  centre  in  the 
country  of  his  residence,  although  extending  to  other  countries, 
or  if  his  business  is  of  such  a  character  and  extent  as  to  require 


OH.  xxix.—:national  GIIABACTEB.  309 

an  indefinite  period  to  bring  it  to  completion,  the  fair  inference 
is,  that  he  intends  to  reside  there  permanently,  and  the  court  will 
therefore  regard  it  as  his  domicil. 

§  15.  Time  of  residence.  Another  and  most  significant  cir- 
cumstance by  which  the  intention  may  be  ascertained,  is  the 
tiTTie  of  residence.  In  most  cases,  this  circumstance  is  unavoid- 
ably conclusive  in  determining  domicil.  Even  where  the  party 
iiad  first  gone  to  a  foreign  country  for  a  special  purpose,  which 
would  repel  the  presumption  that  he  intended  to  make  it  his 
permanent  residence,  yet  if  he  has  remained  a  great  length  of 
time,  it  will  be  presumed  that  his  first  intention  has  been 
changed,  and  that  a  general  residence  has  grown,  as  is  frequently 
the  case,  upon  a  special  purpose.  Hence,  the  plea  of  an  original 
special  purpose  is  not  to  be  averred  against  a  residence  continued 
for  a  long  period  of  time. 

§  16.  Distinction  in  favor  of  American  merchants.  In  former 
times  the  particular  situation  of  America,  with  respect  to  distance, 
was  considered  by  the  English  courts  as  entitling  the  merchants 
of  that  country  to  some  favorable  distinctions  in  the  matter  of 
domicil,  as  determined  by  length  of  residence.  It  was,  there- 
fore, held  that  they  might  remain  in  an  European  state  for  a 
longer  period  than  a  merchant  of  a  neighboring  country,  with- 
out being  considered  as  a  permanent  resident.  But,  with  the 
present  facilities  for  communication  afforded  by  steam  and 
telegraph,  it  is  doubtful  if  this  favorable  distinction  would  now 
be  made. 

§  17.  Presumption  arising  from  foreign  residence.  The  pre- 
sumption of  law  with  respect  to  residence  in  a  foreign  country, 
is,  that  the  party  is  there  animo  manendij  and  it  lies  upon  him 
to  explain  it.  Thus,  when  the  property  of  a  foreigner,  who,  at 
the  time  of  its  shipment,  was  living  in  a  hostile  country,  is 
seized  as  that  of  an  enemy,  the  captors  are  not  bound  to 
prove  that  his  place  of  residence  was  his  actual  domicil; 
but  it  rests  upon  him  to  disprove  the  presumption  of  the 
law,  and,  to  redeem  his   property  from  the   noxious  imputa- 


eSlO        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

tion,  he  must  give  such  evidence  of  his  intention  and  plans,  as 
shall  be  effectual  to  repel  it. 

§  18.  Evidence  to  repel  this  presamption.  In  order  to  i-epel 
this  presumption  of  the  law,  it  is  necessary  for  the  party  to  prove 
that  his  original  intention  was  to  remain  only  for  a  short  and 
definite  period,  that  to  accomplish  the  purpose  of  his  visit, 
neither  a  long  nor  an  indefinite  period  would  be  required ;  that 
his  past  residence  had  not  been  long  enough,  by  the  mere  opera- 
tion of  time,  to  establish  a  domicil,  and  that  he  had  not  been  so 
mixed  up  with  the  trade  and  navigation  of  the  country,  as  to 
have  acquired  its  national  character,  by  the  very  nature  of  his 
occupation. 

§  19.  Of  ministers  and  consuls.  The  national  character  of  an 
ambassador,  or  public  minister,  is  not  affected  by  his  residence 
in  a  foreign  country,  no  matter  what  may  be  its  duration,  or  the 
circumstances  indicative  of  the  intent  of  the  party  to  render  it 
permanent.  This  results  from  the  rule  of  ex-territoriality  as 
already  discussed.  Being  deemed  a  resident  within  the  territory 
of  his  own  state,  the  law  of  foreign  domicil  does  not  apply  to 
him.  But  a  consul  does  not  come  within  this  exception, 
although  mere  residence  in  the  performance  of  his  official  duties 
may  not  confer  upon  him  a  foreign  domicil,  nevertheless,  his 
consular  character  affords  no  protection  to  his  mercantile  adven- 
tures. 

§  20.  Other  public  officers.  The  French  jurists  have  laid 
down  the  following  rules  respecting  the  domicil  of  officers,  civil 
or  military,  employed  in  the  public  service :  1st.  If  the  office 
be  for  life,  and  irrevocable,  the  domicil  of  the  holder  is  in  the 
place  where  its  functions  are  to  be  discharged,  and  no  proof  of 
the  contrary  will  be  admitted,  "  for  the  law  will  not  presume  an 
intention  contrary  to  indispensable  duty."  2d.  If  the  office  be 
temporary  or  revocable,  the  law  does  not  presume  that  the 
holder  has  changed  his  original  domicil,  but  proof  will  be 
admitted  to  establish  the  fact  that  he  has  done  so.  These  two 
divisions,  says  Phillimore,  seem  to  warrant  a  3d :  Where  the 


GH.  XXIX.— NATIONAL  CHARACTER.  Sn 

office,  although  for  life  and  irrevocable,  requires  the  holder  to 
reside  only  a  part  of  the  time  in  the  place  where  its  functions 
are  to  be  discharged,  the  law  will  presume  his  domicil  to  be  in 
that  place,  but  this  presumption  will  yield  to  proof  that  the  seat 
of  his  family  aifairs, — the  residence  of  his  wife  and  children — 
is  elsewhere,  and  that  he  has  described  himself,  in  all  legal  in- 
struments, as  belonging  to  the  place  of  former  domicil,  and  not 
to  the  place  of  his  employment. 

§  21.  A  wife,  minor,  student,  servant.  It  was  a  maxim  of  the 
Roman  law,  which  has  been  incorporated  into  modern  jurispru- 
dence, that  as  the  wife  takes  the  rank,  so  does  she  also  take  the 
domicil  of  her  husband ;  and,  by  the  same  analogy,  the  widow 
retains  it  after  her  husband's  death.  But  if  she  marry  again, 
her  domicil  becomes  that  of  her  second  husband.  A  minor, 
who  is  not  svi  juris,  cannot  change  his  domicil  of  his  own 
accord,  (^propria  marte  ;)  his  domicil  is  that  of  the  father,  or  of 
the  mother  during  widowhood,  or,  perhaps  in  some  cases,  of  the 
legally  appointed  guardian.  Students,  whether  majors  or 
minors,  are  not  considered  as  acquiring  a  domicil  in  the  place 
where  they  sojourn  merely  for  the  purpose  of  prosecuting  their 
studies.  Servants  may,  or  may  not,  have  the  same  domicil  as 
their  masters,  according  to  the  particular  circumstances  of  the 
case. 

§  22.  A  soldier,  prisoner,  exile,  and  fugitive.  According  to 
the  Roman  law,  a  soldier's  domicil  was  in  the  country  where  he 
served,  if  he  possessed  nothing  in  his  own  country ;  but  if  he 
had  any  property  in  his  own  country,  he  would  be  allowed  a 
double  domicil.  By  the  law  of  all  Europeaii  countries,  the 
prisoner  preserves  the  domicil  of  his  country.  With  respect  to 
exiles,  the  civil  jurists  distinguish  between  banishment  for  life, 
and  for  a  term  of  years;  in  the  first,  the  exile  loses  his 
original  domicil,  but  preserves  it  in  the  second,  being  regarded 
in  the  same  light  as  a  person  on  a  long  voyage.  The  fugitive 
or  emigrant  from  his  country,  on  account  of  civil  war)  is  held 
not  to  have  lost  his  intention  of  returning  to  it,  and  therefore, 


312        INTERNATIONAL    LAW  AND  LAWS  OF  WAR. 

retains  his  native  domicil.  But  if  the  prisoner,  exile,  or  fugi- 
tive continue  to  reside  in  a  foreign  country  after  the  coercion 
has  been  withdrawn,  and  after  his  power  of  choice  has  been 
restored,  he  may  acquire  a  domicil  therein. 

§  23.  Effect  of  municipal  laws  on  domicil.  Suppose  the 
government  of  the  country  of  residence  prohibits  a  foreigner 
from  acquiring  a  domicil  ?  It  has  been  decided  in  France  that 
a  de  facto  domicil  may  be  acquired,  notwithstanding  such  pro- 
hibition, even  with  respect  to  the  country  of  residence.  This  is 
placed  on  the  ground  that,  although  not  entitled  to  the  pri- 
vileges of  a  domiciled  subject,  he  may  incur  the  .liabilities. 

§  24.  Of  treaties,  etc.  Treaties  sometimes  have  the  eifect  of 
preserving  to  the  resident  in  a  foreign  country  his  original 
domicil,  or  of  giving  to  him  a  commercial  domicil,  neither  of 
the  country  of  his  origin  nor  that  of  his  residence.  Such  has 
been  the  general  effect  of  the  treaties  and  commercial  intercourse 
between  Christian  and  Mohammedan  states. 

§  25.  Temporary  residence.  If  a  neutral  merchant  go  into  an 
enemy's  country  during  the  war  merely  to  collect  his  debts,  or 
to  withdraw  the  property  which  he  may  have  there,  his  tem- 
porary residence,  for  that  purpose  alone,  will  not  confer  upon 
him  a  hostile  character,  and  the  property  and  funds  thus  sought 
to  be  withdrawn  will  not  be  subject  to  confiscation. 

§  26.  A  merchant  may  have  several  domicils.  The  active  spirit 
of  commerce  and  enterprise  in  the  present  day,  and  the  increased 
facilities  for  travel  afforded  by  steam  navigation  and  railroads, 
are  well  calculated  to  perplex  the  mind  of  a  court  in  assigning 
accurately  a  merchant's  national  character,  at  different  periods 
of  a  divided  transaction.  Thus,  if  he  have  charge  of  a  complex 
mercantile  business,  he  may  be  found,  at  no  great  intervals  of 
time,  in  a  variety  of  local  situations,  without  any  permanent 
residence  in  any  one  place.  It  is,  therefore,  held,  that  a  mer- 
chant carrying  on  commerce  in  different  countries,  in  time  of 
war,  has  the  national  character  of  each,  in  his  respective 
trades. 


CH.  XXIX.--NATIONAL  CHARACTER.  313 

§  27.  Native  character  easily  reverts.  The  native  national 
character,  lost,  or  suspended  by  a  foreign  domicil,  easily  reverts. 
The  adventitious  character  imposed  by  domicil,  ceases  with  the 
residence  from  which  it  arose.  An  actual  return  to  his  native 
country  is  not  always  necessary,  nor  even  an  actual  departure 
from  the  country  of  his  domicil,  if  he  has  actually  put  himself 
in  motion  bond  fide  to  quit  the  country  sine  animo  revertendi. 
But  the  commencement  of  the  journey  to  return  to  his  native 
country,  although  it  may  restore  to  the  party  his  native  national 
character,  will  exempt  his  property  from  the  hostile  character 
acquired  by  residence,  only  in  cases  where  such  property  has 
been  engaged  in  a  trade  completely  lawful  in  the  native  charac- 
ter. The  principle  can  never  be  extended  to  protect  a  trade 
which  is  illegal  in  a  native  subject  or  citizen. 

§  28.  Leaving  and  returning  to  native  country.  In  the  appli- 
cation of  the  general  rule  that  the  native  character  of  the  party 
must  be  taken  from  that  of  the  country  where  he  resides,  there 
is  a  material  difference  between  removing  from,  and  returning 
to,  one's  native  country.  Although  the  native  character  re- 
mains till  a  new  domicil  is  acquired  by  actual  residence  or  set- 
tlement in  a  foreign  country,  the  adventitious  character  resulting 
from  domicil,  ceases  with  the  residence  from  which  it  arose. 

§  29.  National  character  during  war.  It  seems  to  be  a  well 
settled  principle  of  international  law  that,  during  the  existence 
of  hostilities,  {flagrante  bello,)  no  subject  of  a  belligerent  can 
transfer  his  allegiance,  or  acquire  a  foreign  domicil  by  emigra- 
tion from  his  own  country,  so  as  to  protect  his  trade  either 
against  the  belligerent  claims  of  his  own  country,  or  against 
those  of  a  hostile  power.  In  other  words,  his  allegiance  con- 
tinues the  same,  and  his  native  character  is  unaffected  by  his 
change  of  residence.  This  doctrine  rests  on  the  ground  that  to 
desert  one's  own  country  in  time  of  war,  is  an  act  of  crimi- 
nality, and  that  if  a  citizen  remove  to  another  state,  his  alle- 
giance is  still  due  to  his  sovereign,  and  he  is  as  much  bound  to 
abstain  from  trade  with  a  public  enemy,  as  if  he  had  remained 
27  2  p 


314        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

at  home ;  and  his  property,  as  that  of  an  enemy,  continues  to 
be  just  as  liable  to  seizure  and  confiscation,  by  an  opposite  bel- 
ligerent. 

§  30.  Effect  of  military  occupation.  Mere  military  occupation 
of  a  territory  by  the  forces  of  a  belligerent,  (without  confirma- 
tion of  conquest  by  one  of  the  modes  recognized  in  interna- 
tional law,)  does  not,  in  general,  change  the  national  character  of 
the  inhabitants.  It  will  be  shown  in  a  subsequent  chapter,  that 
the  allegiance  of  such  inhabitants  is  temporarily  suspended,  but 
not  actually  transferred  to  the  conqueror.  They  owe  to  such 
military  occupants  certain  duties,  but  these  fall  far  short  of  a 
change  of  the  allegiance  due  to  their  former  sovereign. 

§  31.  Of  complete  conquest.  It  will  also  be  shown  hereafter 
that,  where  the  conquest  is  confirmed,  or  in  any  other  way  made 
complete,  the  allegiance  of  the  inhabitants  who  remain  in  the 
conquered  territory  is  transferred  to  the  new  sovereign.  The 
same  effect  is  produced  by  an  ordinary  cession  of  such  territory. 
In  either  case  the  national  character  of  the  inhabitants  who  re- 
main, is  deemed  to  be  changed  from  that  of  the  former  to  the 
new  sovereign,  and  in  their  relations  with  other  nations  they  are 
entitled  to  all  the  advantages,  and  are  subject  to  all  the  disad- 
vantages, of  their  new  international  status. 

§  32.  Of  cession  without  occupation.  But  mere  cession  by 
treaty  does  not  of  itself  operate  as  an  immediate  transfer  of  the 
allegiance  of  the  inhabitants  of  the  ceded  territory.  They  re- 
main subjects  of  the  power  to  which  their  allegiance  was  origi- 
nally due,  until  the  solemn  delivery  of  the  possession  by  the 
ceding  state,  and  an  assumption  of  the  government  by  that  to 
which  the  cession  is  made.  The  actual  delivery  of  the  j)0'''Ses- 
sion,  and  the  actual  exercise  of  the  powers  of  government  must 
be  clearly  shown. 

§  33.  Of  revolution  and  insurrection.  Revolution  or  possession 
by  insurgents,  as  already  stated,  cannot  be  regarded  by  a  prize 
court  as  changing  the  national  character  of  the  territory  so  pos- 
sessed or  occupied,  until  the  fact  has  been  recognized  by  the 


CH.  XXIX.— NATIONAL   CHARACTER,  315 

political  authority  of  the  government  to  which  the  court  be- 
longs. Thus,  although  it  was  a  matter  of  notoriety  that  a  con- 
siderable part  of  the  island  of  St.  Domingo,  had,  by  revolt, 
been  detached  from  the  French  colonial  government,  and  its 
inhabitants  were  in  common  opposition  to  France,  then  at  war 
with  England,  the  court  of  appeal,  nevertheless,  decided  that 
such  inhabitants  must  be  regarded  as  hostile  in  their  commercial 
relations,  till  the  British  government  should  recognize  their 
change  of  national  character.  But  where  any  port  or  part  of 
the  island  had  been  recognized  by  orders  in  council,  as  not  in 
the  possession  and  under  the  dominion  of  France,  such  port  or 
place  would  be  so  considered  by  the  court.  The  Supreme  Court 
of  the  United  States  has  adopted  the  same  rule  of  decision. 

§  34.  Of  a  particular  trade.  In  many  cases,  the  nature  of  the 
traffic  or  business  in  which  an  individual  is  engaged,  may  stamp 
upon  him  a  national  character,  wholly  independent  of  that 
which  his  place  of  residence  alone  would  impose.  Thus,  al- 
though a  neutral  merchant,  residing  in  his  own  country,  and 
trading,  in  the  ordinary  manner,  to  the  country  of  a  belligerent, 
does  not  thereby  acquire  a  hostile  character,  yet,  if  he  is  a  pri- 
vileged trader,  engaged  in  a  commerce  that  none  but  the  sub- 
jects of  the  enemy  are  permitted  to  conduct,  or  that  can  only 
be  carried  on  by  a  special  license  from  the  government,  the 
place  of  his  domicil  will  not  protect  such  trade,  but  all  his  pro- 
perty embarked  in  it  becomes  liable  to  confiscation,  as  that  of 
an  enemy. 

§  35.  This  character  differs  from  that  derived  from  domiciL 
There  is,  however,  a  very  material  distinction  between  the  hos- 
tile character  impressed  by  domicil,  and  that  which  results  solely 
from  the  nature  of  the  traffic  in  which  the  individual  is  en- 
gaged. A  foreign  merchant  domiciled  in  the  country  of  the 
enemy,  is  himself  an  enemy,  in  the  same  sense  and  to  the  same 
.extent  as  a  native  subject;  and  all  his  property  on  the  ocean, 
wherever  it  may  be  found,  and  whatever  may  be  the  nature  of 
the  commerce  in  which  it  is  embarked,  is  liable  to  confiscation. 


316        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

But  the  hostile  character  which  arises  solely  from  the  nature  of 
the  traffic,  is  limited,  in  its  noxious  and  penal  effects,  to  the  trans- 
actions and  property  that  the  prohibited  trade  embraces;  in  all 
other  respects,  such  individual  still  retains  all  the  rights  and 
immunities  of  a  neutral,  a  subject,  or  an  ally,  as  the  case 
may  be. 

§  36.  Of  habitual  employment.  The  habitual  employment 
of  an  individual  may  also  affect  his  national  character.  Thus, 
a  person  employed  habitually  and  constantly,  as  a  master  or 
mariner,  or  as  a  supercargo  or  commercial  agent,  in  the  trade 
and  navigation  of  a  hostile  country,  although  he  has  no  domicil 
there,  in  the  civil  and  legal  sense  of  the  term,  is  impressed  with 
its  national  character,  and  this  hostile  character  spreads  itself,  in 
its  consequences,  generally  over  his  affairs.  It  follows  and  in- 
volves all  his  property,  in  whatever  trade  employed,  that  does 
not  appear,  from  other  circumstances,  to  have  acquired  a  distinct 
national  character. 

§  37.  National  character  of  ships  and  goods.  The  national 
character  of  ships  is,  as  a  general^  rule,  determined  by  that 
of  their  owners.  But,  as  already  shown,  this  rule  is  subject  to 
many  exceptions,  a  hostile  character  being  not  unfrequently  im- 
pressed upon  the  vessel,  while  its  owners  are  neutrals  or  friends. 
Thus,  a  hostile  flag  and  pass,  the  carrying  of  military  persons 
or  dispatches  of  an  enemy,  trading  between  enemy's  ports,  etc., 
will  give  to  the  vessel  a  hostile  character,  no  matter  what  may 
be  that  of  its  owners.  The  national  character  of  goods,  as  a 
general  rule,  follows  that  of  their  owner;  but,  as  shown  in  the 
preceding  chapters,  this  rule  is  sometimes  varied  by  the  charac- 
ter and  conduct  of  the  vessel  in  which  they  are  found,  by  the 
acts  of  the  commander  or  supercargo  in  whose  hands  they  have 
been  placed,  and  by  the  nature  of  the  documentary  evidence  by 
which  the  ownership  is  attempted  to  be  proved. 


CHAPTER  XXX. 

RIGHTS  AND  DUTIES  OF  CAPTORS. 

§  1.  Of  captures  generally.  The  term  capture,  as  used  in  In- 
ternational law,  embraces  everything  taken  in  war,  both  on  land 
and  water.  We,  however,  shall  discuss  in  this  chapter  only 
maritime  captures. 

§  2.  What  constitutes  a  maritime  capture.  The  courts  have 
decided  that  an  act  of  taking  possession  is  not  indispensably 
necessary  to  a  capture;  an  obedience  to  the  summons  of  the 
hostile  force,  though  none  of  that  force  be  actually  on  board,  is 
sufficient.  The  real  surrender,  (deditio)  of  a  vessel,  is  dated 
from  the  time  of  striking  her  colors.  But  there  must  be  a 
manifest  intention  to  retain  as  prize,  as  well  as  an  intention  to 
seize,  otherwise  the  capture  will  be  regarded  as  abandoned. 

§  3.  To  whose  benefit  it  enures.  The  right  to  all  captures 
vests,  primarily,  in  the  sovereign.  When  the  capture  enures  to 
the  benefit  of  individuals,  it  is  in  consequence  of  a  grant  by  the 
state. 

§  4.  Title  when  changed.  With  respect  to  maritime  captures 
the  modern  usage,  after  much  iluctuation,  seems  likely  to  settle 
upon  the  principle,  that  the  captor  acquires  an  inchoate  title  by 
possession  alone,  and  that,  to  make  this  complete  and  perfect,  a 
condemnation  by  a  competent  court  of  prize  is  necessary. 

§  5.  Where  prizes  must  be  taken.  It  is  incumbent  on  the  cap- 
tor to  bring  his  prize,  as  speedily  as  may  be  consistent  with  his 
other  duties,  within  the  jurisdiction  of  a  court  competent  to  ad- 
judicate upon  it.  But,  if  prevented  by  imperious  circumstances 
from  bringing  it  in,  he  may  be  excused  for  taking  it  to  a  foreign 

27  «  317 


318        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

port,  or  for  selling  it,  provided  he  afterwards  reasonably  subjects 
its  proceeds  to  the  jurisdiction  of  a  competent  court  of  prize. 

§  6.  Of  joint  captures  generally.  JoiTit  captures  are  those 
made  by  two  or  more  vessels  acting  in  conjunction,  or  by  one 
or  more  vessels  with  the  cooperation  of  land  forces.  Where  all 
captured  property  is  condemned  to  the  government,  it  is  of  very 
little  importance  who  are  to  be  considered  the  real  captors, 
where  several  lay  claim  to  that  title;  but  where  captured  pro- 
perty is  condemned  as  prize  to  the  benefit  of  the  captors,  it  be- 
comes a  question  of  special  interest  to  determine  who  are,  in 
law,  to  be  considered  as  captors,  and,  ox)nsequently,  to  share  in 
the  prize.  Municipal  law  may  determine  such  questions  where 
all  the  claimants  belong  to  the  same  state,  but  in  case  of  allies 
it  is  necessary  to  recur  to  international  law. 

§  7.  Constructive  capture  by  public  vessels.  We  will  first  con- 
sider joint  capture  by  'public  vessels  of  war.  All  ships  of  war 
which  are  in  sight  at  the  time  of  the  actual  seizure,  are  deemed 
to  be  constructively  assisting,  and,  therefore,  are  entitled  to 
share  in  the  prize.  The  reason  of  this  rule  is,  that  public  ships 
are  under  a  constant  obligation  to  attack  the  enemy  wherever 
seen,  and,  therefore,  from  the  mere  circumstance  of  being  in 
sight,  a  presumption  is  sufficiently  raised  that  they  are  there 
animo  capiendi ;  and  this  rule  is  additionally  supported  by  the 
obvious  policy  of  promoting  harmony  in  the  naval  service. 

§  8.  When  actual  sight  is  not  necessary.  But  actual  sight  is 
not  absolutely  necessary  to  constitute  constructive  joint  capture. 
If  it  be  shown  that  the  asserted  joint  captor  was  in  sight  when 
the  darkness  came  on,  and  that  she  continued  steering  the  same 
course  by  w^ich  she  was  before  nearing  tlie  prize,  and  that  the 
l^rize  itself  also  continued  the  same  course,  it  amounts  almost  to 
a  demonstration  that  the  vessels  would  have  seen,  and  been  seen 
by  each  other  at  the  time  of  capture,  if  darkness  had  not  inter- 
vened. In  such  a  case,  the  vessel  so  pursuing  is  let  into  the 
benefit  of  joint  capture. 

§  9.  Of  joint  chase.     In  respect  to  joint  chase,  much  depends 


CH.  XXX.— BIGHTS  AND  DUTIES  OF  CAPTORS.        319 

upon  whether  the  vessels  are  acting  in  association,  or  separately 
with  a  common  object  in  view.  In  the  latter  case,  the  question 
of  actual  or  constructive  sight  will  generally  determine  the 
claim  to  joint  capture,  as  stated  in  the  preceding  paragraph. 

§  10.  Services  before  and  after  capture.  No  antecedent  or  mb- 
sequervt  services  in  the  expedition  will  entitle  a  party  to  the 
benefit  of  joint  capture,  where  he  would  not  otherwise  be  en- 
titled to  share. 

§  11.  Vessels  associated  in  same  service.  In  respect  to  cap- 
tures made  by  ships  which  are  associated  in  the  same  service  or 
joint  enterprise,  under  the  same  superior  officer,  as  a  general 
rule  all  are  entitled  to  share  as  joint  captors,  although  not  in 
sight  at  the  time  of  capture.  The  fleet  so  associated  is  con- 
sidered as  one  body,  acting  together  for  one  single  object,  and 
what  is  done  by  a  part  enures  to  the  benefit  of  all. 

§  12.  Mere  association  not  sufficient.  But  mere  association  is 
not  sufficient  to  entitle  vessels  to  share  as  constructive  joint 
captors ;  they  must  have  a  military  character,  and  be  capable 
of  rendering  military  service ;  in  other  words,  there  must  be  an 
animus  capiendi.  Thus,  a  ship  forming  part  of  a  blockading 
squadron,  but  totally  unrigged,  and  incapable  of  rendering 
any  service  at  the  time  of  capture,  is  held  to  be  as  much  ex- 
cluded as  one  totally  unconscious  of  the  transaction ;  because, 
by  no  possibility  could  that  ship  be  enabled  to  cooperate  in 
time. 

§  13.  Convoying  sMps.  Convoying  ships  are  under  no  dis- 
ability of  claiming  as  joint  captors  an  account  of  their  employ- 
ment, if,  in  other  respects,  entitled  to  share  in  the  prize,  unless 
the  capture  is  made  at  such  a  distance  as  would  remove  them 
from  the  performance  of  the  special  duty  of  protecting  their 
convoy. 

§  14.  Detached  vessels.  If  a  vessel  be  detached  from  the 
fleet  at  the  time  of  capture  so  as  to  separate  her  from  the  joint 
object,  she  cannot  be  considered  as  a  constituent  part  or  member 
of  the  association,  and  cannot  claim  the  benefit  of  joint  capture 


320        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

with  the  fleet,  nor  can  the  fleet  be  allowed  to  come  in  as  joint 
captors  in  any  prize  taken  by  her  after  she  was  detached. 

§  15.  Joint  capture  by  land  and  sea  forces.  It  has  been  held 
that  a  mere  general  cooperation,  in  the  same  general  objects, 
will  not  be  sufficient  to  make  land  forces  joint  captors  with  a 
fleet ;  there  must  be  an  actual  assistance  and  cooperation  in  the 
particular  capture.  Where  there  is  preconcert,  a  very  slight 
service  is  sufficient.  So,  where  soldiers  are  landed  on  the  coast, 
to  cooperate  with  a  fleet,  in  a  conjunct  expedition,  or  in  a  par- 
ticular engagement,  they  are  entitled  to  share  in  the  capture. 

§  16.  By  public  ships  of  allies.  The  public  ships  of  allies, 
serving  together,  are  entitled  to  share  in  captures,  the  same  as 
those  of  a  single  belligerent.  There  is  no  diflercnce  in  this 
respect,  whether  the  benefit  of  joint  capture  goes  to  the  govern- 
ment, or  to  the  vessels,  their  commanders  and  crews.  If,  of  two 
allied  joint  captors,  the  government  of  one  has  made  a  grant 
of  the  prize,  and  the  other  has  not,  the  condemnation  will  be, 
in  the  former  case,  directly  to  the  joint  captor,  and  in  the  latter, 
to  the  government,  according  to  the  share  of  each. 

§  17.  Constructive  joint  captures  not  allowed  to  privateers. 
As  privateers  are  not  under  the  same  obligations  as  a  public 
vessel  to  attack  the  enemy  wherever  seen,  they  are  not  allowed 
the  benefit  of  constructive  joint  capture.  A  different  rule 
would  induce  privateers  to  follow  in  the  wake  of  public  ships 
of  war,  and  keeping  in  sight  of  them,  merely  to  become  entitled 
to  the  joint  benefit  of  the  captures  which  they  might  make. 
But  a  public  ship  of  war,  is  entitled  to  the  benefit  of  construc- 
tive joint  capture,  where  the  actual  taker  is  a  privateer,  the 
same  as  though  both  were  vessels  of  war. 

§  18.  Captures  by  revenue  cutters.  Revenue  cutters  are  some- 
times furnished  with  letters  of  marque,  and  cruise  beyond  the 
ordinary  limits  of  their  duty  as  coast  guards,  for  the  purpose  of 
capturing  enemy's  merchant  vessels.  They  are  public  vessels, 
but  not  public  vessels  of  war,  and,  with  respect  to  the  benefits 
of  joint  capture,  are,  by  English  courts,  considered  in  the  light 


CH.  XXX.— RIGHTS  AND  DUTIES  OF  CAPTORS.        321 

of  privateers,  and  the  rule  of  constructive  assistance,  from  being 
in  sight,  does  not  apply  to  them ;  for,  not  being  under  the  same 
obligations  as  kings'  ships  to  attack  the  enemy,  they  are  not 
entitled  to  the  same  presumption  in  their  favor. 

§  19.  By  boats.  With  respect  to  captures  made  by  boats,  it 
is  a  general  rule,  that  the  ships  to  which  they  belong,  are 
entitled  to  share  as  joint  captors;  or  rather,  the  capture  is  con- 
sidered as  made  by  the  ship,  the  boats  being  a  part  of  the  force 
of  the  ship.  But  if  the  capturing  boat  has  been  detached  from 
the  ship  to  which  it  belongs,  and  attached  to  another,  only  the 
ship  to  which  it  is  attached  at  the  time  of  capture,  shares  in  the 
prize. 

§  20.  By  tenders.  Captures  made  by  tendet^s  are  regulated  by 
the  same  rules  as  those  made  by  boats,  the  ship  to  which  the 
tender  is  attached  being  entitled  to  share,  however  distant  she 
may  be  at  the  time  of  capture. 

§  21.  By  prize-masters.  Prizes  hold  the  same  relation  to  their 
captors,  as  do  the  boats  of  the  same  vessel.  Hence,  prize 
interests  acquired  by  a  prize-master  on  board  of  a  captured 
vessel,  enure  to  the  benefit  of  the  whole  ship's  company. 

§  22.  By  non-commissioned  vessels.  The  general  rules  of  joint 
capture  for  commissioned  privateers,  are  also  applicable  to  non- 
commissioned vessels ;  with  this  distinction  : — that  all  captures 
by  the  latter  must  be  condemned  to  the  government  as  droits  of 
admiralty,  the  captors  only  receiving  compensation  in  the  nature 
of  salvage,  which  is  usually  awarded  by  the  prize  court,  where 
their  conduct  has  been  fair ;  and  in  cases  where  there  has  been 
great  personal  gallantry  and  merit,  the  whole  value  of  the  prize 
is  given  them. 

§  23,  Man-of-war  as  jomt  captor  cannot  dispossess  a  privateer. 
Where  a  privateer  or  non-commissioned  vessel  is  the  actual 
captor,  and  a  man-of-war  only  a  joint  captor,  the  latter  has  no 
right  to  dispossess  the  former,  but  is  entitled  to  put  some  one  on 
board  to  take  care  of  the  interests  she  may  have  in  the  capture. 

§  24.  Effect  of  fraud  on  claims  for  joint  capture.     Any  miscon- 


322        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

duct  or  fraud  on  the  part  of  the  capturing  vessel,  intended  to 
deceive  another,  in  order  to  prevent  her  from  taking  part  in  a 
capture,  is  generally  punished  by  admitting  the  claim  of  the 
latter  to  the  benefit  of  joint  captor. 

§  25.  Distribution  of  prize  to  joint  captors.  It  is  a  general 
rule  of  prize  law  that  joint  captors  share  in  proportion  to  their 
relative  strength.  And  this  relative  strength  is  usually  de- 
termined by  the  number  of  men  on  board  the  actual  taker,  and 
the  ships  assisting  in  the  capture. 

§  26.  Of  bounty  or  head  money.  The  foregoing  remarks 
respecting  joint  capture  refer  to  benefit  in  prize  ;  but  some  states 
also  allow  a  bounty,  or  head  money,  for  the  taking  or  destroying 
of  vessels  of  the  enemy.  Such  provision  is  made  by  the  fifth 
section  of  the  English  prize  act.  As  grants  of  this  description 
are  considered  as  made  to  reward  immediate  personal  exertion, 
and,  moreover,  are  public  grants,  the  courts  construe  them  with 
much  more  rigor  than  they  do  the  conflicting  claims  of  indi- 
viduals for  shares  of  prize  money.  In  these,  as  in  all  other 
public  grants,  the  presumption  is  in  favor  of  the  grantor,  and 
against  the  grantee.  Hence,  all  claims  of  constructive  joint 
capture,  as  from  sight,  association  in  chase,  etc.,  are  rejected. 

§  27.  Collusive  captures.  In  all  cases  of  collusive  captures, 
the  captors,  whether  single  or  joint,  acquire  no  title  to  the  prize, 
and  the  captured  property  is  condemned  to  the  government. 
If  collusion  be  alleged,  the  usual  simplicity  of  the  prize  pro- 
ceedings is  departed  from  in  order  to  discover  the  fraud,  if  any 
exist. 

§  28.  Forfeiture  of  claims  to  prize.  In  all  cases  of  forfeiture  of 
interest  in  the  prize  by  the  captors,  the  condemnation  is  to  the 
government.  The  captor  may  forfeit  his  right  of  prize  in  various 
ways :  as,  by  an  unreasonable  delay  in  bringing  the  question  of 
prize  or  no  prize  to  an  adjudication  by  a  competent  court ;  by 
unnecessarily  taking  the  captured  vessel  to  a  neutral  port ;  by 
cruel  treatment  of  the  captured  crew;  by  breaking  bulk  on 
board,  except  in  case  of  necessity ;  by  embezzlement ;  by  breach 


CH.  XXX.— BIGHTS  AND  DUTIES  OF  CAPTORS.        323 

of  instructions,  or  any  offense  against  the  law  of  nations,  etc. 
But  irregularities  on  the  part  of  captoi'S,  originating  in  mere 
mistake  or  negligence,  which  work  no  irreparable  mischief, 
and  are  consistent  with  good  faith,  will  not  forfeit  their  right  of 
priza 

§  29.  Probable  cause  of  seizure  usually  sufficient.  Probable 
came  of  seizure  is,  by  the  general  usage  of  nations  and  the 
decisions  in  admiralty,  sufficient  excuse  in  cases  of  capture  de 
jure  bellij  and  this  question  belongs  exclusively  to  the  court, 
which  has  jurisdiction  to  restore  or  condemn.  The  general 
principles  which  govern  cases  of  this  character,  are  embodied  in 
the  statute  laws  of  the  United  States.  The  act  of  June  26th, 
1812,  section  six,  provides  that  the  courts  of  the  United  States 
in  which  the  case  may  be  finally  decided,  "  shall  and  may  decree 
restitution,  in  whole  or  in  part,  when  the  capture  shall  have 
been  made  without  just  cause ;  and  if  made  without  probable 
cause,  or  otherwise  unreasonably,  may  order  and  decree  damages 
and  costs  to  the  party  injured." 

§  30.  When  captors  are  liable  for  costs  and  damages.  But  if 
there  were  no  reasonable  causes  for  suspicion,  and  the  capture  is  a 
mere  naked  trespass ;  if  the  captured  vessel  be  lost  or  injured 
through  neglect  of  the  captor,  or  if  he  unreasonably  delay  to 
procure  an  adjudication,  the  courts  may  decree  costs  and  damages 
against  him. 

§  31.  Duties  of  prize  master.  It  is  the  duty  of  the  prize 
master,  immediately  on  his  arrival  in  port,  to  institute  pro- 
ceedings in  the  proper  court  for  the  adjudication  of  his 
prize.  He  should  also  deliver  over  to  the  commissioner, 
or  proper  officer  of  the  court,  all  the  papers  and  documents 
found  on  board,  and,  at  the  same  time,  make  affidavit  that 
they  are  delivered  up  as  taken,  without  fraud,  addition,  sub- 
stitution or  embezzlement.  He  should  also  have  the  master 
and  principal  officers,  and  some  of  the  crew,  of  the  captured 
vessel,  brought  in  for  examination.  This  examination  should 
take  place  as  soon  as  possible  after  the  arrival  of  the  vessel. 


CHAPTER    XXXI. 

PRIZE  COURTS.  THEIR  JURISDICTION  AND  PROCEEDINGS. 

§  1.  Validity  of  a  maritime  capture  how  determined.  The 
validity  of  a  maritime  capture  must  be  determined  by  a  prize 
court  of  the  government  of  the  captor,  and  cannot  be  adjudi- 
cated by  the  court  of  any  other  country. 

§  2.  Why  prize  courts  of  other  countries  cannot  condemn.  The 
reason  of  this  rule  is  based  upon  the  responsibility  which  the 
law  of  nations  imposes  upon  the  government  of  the  captor  in 
case  of  unlawful  condemnation  of  the  captured  property.  If 
the  court  of  any  country  other  than  that  of  the  captor  were  to 
condemn,  the  government  of  the  captor  could  not  be  held  re- 
sponsible to  the  government  whose  citizen  is  unlawfully  de- 
prived of  his  property.  This  rule  necessarily  excludes  the 
jurisdiction  of  a  prize  court  of  an  ally  over  captures  made  by 
his  co-belligerent.  The  government  of  the  captor  is  held 
responsible  to  other  states  for  the  acts  of  his  own  subjects,  but 
not  for  those  of  his  allies. 

§  3.  Apparent  exceptions  where  neutral  rights  have  been  in- 
fringed. There  are  two  apparent  exceptions  to  this  exclusive 
jurisdiction  of  the  prize  courts  of  the  captor's  country  over 
questions  of  prize ;  firsts  where  the  capture  is  made  within  the 
territory  of  a  neutral  state,  and  second^  where  it  is  made  by  a 
vessel  fitted  out  within  the  territory  of  the  neutral  state.  In 
either  of  these  cases,  the  judicial  tribunals  of  such  neutral  state 
have  jurisdiction  to  determine  the  validity  of  captures  so  made, 
and  to  vindicate  its  own  neutrality  by  restoring  the  property  of 
its  own  subjects,  or  of  other  states  in  amity  with  it. 

324 


CH.  XXXL— PRIZE  COURTS.  325 

§  4.  If  captor  have  no  prize  court  or  maritime  ports.  We  have 
already  stated  that  a  prize  or  its  proceeds  must  be  brought  into 
port  of  captor's  country  for  condemnation  by  a  proper  court. 
But  suppose  the  captor  has  no  ports,  or  prize  courts,  to  which  he 
can  bring  his  prize ; — may  he  destroy  his  captures  ?  Isolated 
cases  may  occur  during  the  prosecution  of  a  war  where  the  de- 
struction of  a  prize  is  justifiable;  but  where  the  destruction  of 
all  prizes  Avithout  condemnation  is  adopted  as  a  rule,  it  would 
be  difficult  to  distinguish  it  from  piracy.  Both  are  equally 
repugnant  to  international  law. 

§  5.  Attempts  of  neutrals  to  assume  prize  jurisdiction.  At- 
tempts have  been  made  by  some  states  to  give  to  their  own  tri- 
bunals prize  jurisdiction  of  all  captured  property  brought  within 
their  territorial  limits.  Such  a  municipal  regulation  was  made 
by  France,  in  1681,  and  its  justice  was  defended  on  the  ground 
of  compensation  for  the  privilege  of  asylum  granted  to  the 
captor  and  his  prizes  in  a  neutral  port.  But  it  is  now  univer- 
sally admitted  that  such  action  of  a  neutral  court  cannot  divest 
the  exclusive  prize  jurisdiction  of  the  courts  of  the  captor's 
country. 

§  6.  Distinction  between  municipal  and  prize  courts.  There  is 
evidently  a  wide  distinction  between  the  ordinary  municipal 
tribunals  of  the  state,  proceeding  under  the  municipal  laws  as 
their  rule  of  decision,  and  prize  tribunals  appointed  by  its 
authority,  and  professing  to  administer  the  law  of  nations  to 
foreigners  as  well  as  subjects.  This  distinction  has  led  to  the 
rule  of  international  law,  that  no  court  can  have  prize  jurisdic- 
tion unless  it  be  expressly  made  a  prize  tribunal  by  the  authority 
of  the  state  to  which  it  belongs. 

§  7.  English  prize  courts.  In  England  prize  jurisdiction  is 
given  to  the  courts  of  admiralty,  by  special  commissions,  dis- 
tinct from  the  usual  commission  given  to  judges  of  that  court. 

§  8.  Prize  courts  of  the  United  States.  Under  the  constitution 
and  laws  of  the  United  States  the  distinct  courts  of  the  federal 
judiciary  are  prize  courts  of  admiralty,  with  all  the  powers  in- 

28 


826        INTERNATIONAL  LAW  AND  LAWS  OF  WAE, 

cident  to  their  character  as  such  under  the  law  of  nations.  No 
special  commission  is  ever  issued  to  these  courts. 

§  9.  The  President  cannot  confer  prize  jurisdiction.  It  has  also 
been  decided  by  the  Supreme  Court,  that  neither  the  President 
of  the  United  States,  nor  any  officer  acting  under  his  authority, 
can  give  prize  jurisdiction  to  courts  not  deriving  their  authority 
from  the  constitution  or  laws  of  the  United  States.  The  Al- 
calde of  Monterey,  a  port  of  Mexico,  in  the  possession  and  mili- 
tary occupation  of  the  United  States,  as  conquered  territory,  was 
appointed  by  the  governor  of  California,  as  a  judge  of  admi- 
ralty with  prize  jurisdiction,  and  the  appointment  was  ratified 
by  the  President,  on  the  ground  that  prize  crews  could  not  be 
spared  from  the  squadron  to  bring  captured  vessels  into  a  port 
of  the  United  States.  The  supreme  court  held  that  such  a  court 
could  not  decide  upon-the  rights  of  the  United  States,  or  of  in- 
dividuals, in  prize  cases,  nor  administer  the  laws  of  nations ; 
that  its  sentence  of  condemnation  w^as  a  mere  nullity,  and  could 
have  no  effect  upon  the  rights  of  any  party. 

§  10.  Court  may  sit  in  country  of  ally.  We  have  already  seen 
that  the  prize  court  of  an  ally  cannot  condemn ;  but  may  not 
the  prize  court  of  the  captor  sit  in  the  territory  of  an  ally  ?  The 
objections  made  to  the  jurisdiction  of  an  ally's  court,  do  not  ap- 
ply to  a  court  belonging  to  the  country  of  the  captor  sitting  in 
an  ally's  territory.  Hence,  Chancellor  Kent  says,  that  such 
court,  so  sitting,  may  lawfully  condemn. 

§  11.  But  not  in  neutral  territory.  But  a  prize  court  of  the 
captors  cannot  sit  in  a  neutral  territory,  nor  can  its  authority  be 
delegated  to  any  tribunal  sitting  in  neutral  territory.  The  rea- 
son of  this  rule  is  obvious.  Neutral  ports  are  not  intended  to 
be  auxiliary  to  the  operations  of  the  belligerents,  and  it  is  not 
only  improper  but  dangerous  to  make  them  the  theatre  of  hos- 
tile proceedings.  A  sentence  of  condemnation  by  a  belligerent 
prize  court  in  a  neutral  port  is,  therefore,  considered  insufficient 
to  transfer  the  ownership  of  vessels  or  goods  captured  in  war, 
and  carried  into  such  port  for  adjudication. 


CH.  XXXL— PRIZE  COURTS.  327 

§  12.  In  conquered  territory.  The  objections  made  to  tlie  es- 
tablisliment  of  a  prize  court  in  neutral  territory  would  not  ap- 
ply to  conquered  territory  in  the  possession  and  military  occu- 
pation of  the  captors.  Such  territory  is  de  facto  within  the 
jurisdiction  of  the  conqueror,  and  a  condemnation  regularly 
made  by  a  prize  court  legally  established  in  such  conquered  ter- 
ritory would  not  be  set  aside  for  that  reason  alone.  The  legality 
of  the  -court  may,  however,  be  a  question  of  some  difficulty,  and 
must  be  determined  by  the  constitution  and  local  law^s  of  the 
captor's  country. 

§  13.  Extent  of  jurisdiction  of  prize  courts.  The  ordinary 
prize  jurisdiction  of  the  admiralty  extends  to  all  captures  in 
w^ar  made  on  the  high  seas ;  to  captures  made  in  foreign  ports 
and  harbors ;  to  captures  made  on  land  by  naval  forces ;  to  sur- 
renders made  to  naval  forces  alone,  or  acting  conjointly  with 
land  forces ;  to  captures  made  in  rivers,  creeks,  ports  and  har- 
boi'S  of  the  captor's  own  country  in  time  of  war,  and  to  seiz- 
ures, reprisals  and  embargoes,  in  anticipation  of  war.  It  also 
extends  to  all  ransom  bills  upon  captures ;  to  money  received 
as  a  ransom,  or  commutation  on  a  capitulation  to  naval  forces, 
alone  or  jointly  with  land  forces ;  in  fine,  to  all  uses  of  mari- 
time capture  arising  jure  belli,  and  to  all  matters  incidental 
thereto.  Prize  courts  also  have  exclusive  jurisdiction  and  an 
enlarged  discretion,  as  to  allowance  of  freight,  damages,  ex- 
penses and  costs,  and  as  to  all  torts,  personal  injuries,  ill-treat- 
ments, and  abuse  of  power,  connected  with  maritime  captures 
de  jure  belli,  and  they  frequently  award  large  and  liberal  dam- 
ages in  such  cases.  But  prize  courts  do  not,  in  general,  take 
jurisdiction  of  questions  of  mere  booty.  If,  however,  the  juris- 
diction of  a  prize  court  has  once  attached,  that  is,  if  the  capture 
be  such  as  to  bring  it  witliin  the  jurisdiction  of  the  admiralty, 
the  process  of  the  prize  court  will  follow  the  goods  on  shore, 
and  its  jurisdiction  still  continues,  not  only  over  the  capture, 
but  also  over  all  questions  incident  to  it.     So,  also,  if  the  prize 


328        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

should  be  unwarrantably  carried  into  a  foreign  port  and  there 
given  up  by  the  captors  on  security. 

§  14.  Location  of  prize.  Prize  courts  take  jurisdiction  of  a 
prize  wherever  it  may  be  conveyed,  and  of  its  proceeds  wherever 
it  may  have  been  sold.  Some  writers  have  questioned  such 
jurisdiction  where  the  prize  has  been  conveyed  into  a  neutral 
port,  but  practice  seems  to  have  definitively  settled  the  rule. 

§  15.  Decision  of  competent  court  conclusive.  The  sentence  of 
a  competent  prize  court  of  the  captor^s  country,  is  conclusive 
upon  the  question  of  property  in  the  captured  thing ;  it  fore- 
closes all  controversy  respecting  the  validity  of  the  capture,  as 
between  the  claimants  and  the  captors  of  those  claiming  under 
them,  and  terminates  all  ordinary  judicial  inquiry  upon  the 
subject  matter.  The  captors  cannot  be  held  responsible  in  the 
court  of  any  other  country,  nor  can  the  question  of  the  owner- 
ship of  the  captured  property  be  made  a  matter  of  judicial 
investigation  when  once  decided  by  a  competent  prize  court. 

§  16.  When  jurisdiction  may  be  inquired  into.  We  have  al- 
ready stated  the  general  principle  that  the  sentence  of  a  prize 
court,  of  competent  jurisdiction,  in  rem,  is  conclusive  upon  the 
title  to  the  property  condemned.  It  may  be  added,  that  the 
general  presumption  is,  that  the  jurisdiction  exercised  by  a  for- 
eign tribunal,  is  lawful.  But  the  presumption  may  be  over- 
turned by  competent  evidence.  Where  a  claim  is  set  up  under 
a  sentence  of  condemnation  of  a  foreign  court,  every  court  has 
a  right  to  examine  into  the  jurisdiction  of  such  foreign  court, 
so  far,  at  least,  as  to  ascertain  its  competency,  in  international 
law,  to  pronounce  the  adjudication.  Whenever  the  jurisdiction 
cannot,  consistently  with  the  law  of  nations,  be  exercised,  tlie 
sentence  will  be  disregarded.  If,  therefore,  a  vessel  be  con- 
demned under  circumstances  which  show  that  the  court  could, 
under  the  rules  of  international  law,  have  no  jurisdiction,  such 
sentence  will  be  regarded  as  a  nullity. 

§  17.  State  responsible  for  unjust  condemnation.  "Where  the 
responsibility  of  the  captor  ceases,"  says  Mr.  Wheaton,  "  that 


CH.  XXXL— PRIZE  COURTS.  329 

of  the  state  begins.  It  is  responsible  to  other  states  for  the  acts 
of  the  captors  under  its  commission,  the  moment  these  acts  are 
confirmed  by  the  definitive  sentence  of  the  tribunals  which  it 
has  appointed  to  determine  the  validity  of  captures  in  war." 
The  sentence  of  the  judge  is  conclusive  against  the  subjects  of 
the  state,  but  it  cannot  have  the  same  controlling  efficiency  to- 
ward the  subjects  of  a  foreign  state.  It  prevents  any  further 
judicial  inquiry  into  the  subject  matter,  but  it  does  not  prevent 
the  foreign  state  from  demanding  indemnity  for  the  property  of 
its  subjects  which  may  have  been  unlawfully  condemned  by  the 
prize  court  of  another  nation. 

§  18.  When  indemnity  may  be  demanded.  But  such  indemnity 
can  be  demanded  only  after  final  decision.  The  subjects  of  a 
neutral  state  can  have  no  right  to  apply  to  their  own  government 
for  a  remedy  against  an  erroneous  sentence  of  an  inferior  court, 
till  they  have  appealed  to  the  superior  court,  or  to  the  several 
superior  courts,  if  there  are  more  tribunals  of  this  sort  than  one, 
and  till  the  sentence  has  been  confirmed  by  the  highest  of  them. 

§  19.  Laws  governing  prize  courts.  Prize  courts  not  only 
differ  from  ordinary  municipal  tribunals  in  their  character  and 
constitution,  but  also  in  respect  to  the  laws  which  they  admin- 
ister. They  are  located  in  the  belligerent  country,  but  they 
must  administer  the  law  of  nations^  which  has  no  locality. 

§  20.  Their  proceedings  differ  from  those  of  other  courts.  "Ko 
proceedings,''  says  Mr.  Justice  Story,  "  can  be  more  unlike  than 
those  in  the  courts  of  common  law  and  in  admiralty.  In  prize 
courts,  in  an  especial  manner,  the  allegations,  the  proofs,  and 
the  proceedings,  are,  in  general,  modeled  upon  the  civil  law, 
with  such  additions  and  alterations  as  the  practice  of  nations 
and  the  rights  of  belligerents  and  neutrals  unavoidably  impose." 
The  parties  in  a  prize  case  are,  therefore,  not  limited  in  their 
recovery,  secundum  allegata  et  probata,  as  in  the  case  of  a  decla- 
ration at  common  law;  but  the  court  having  jurisdiction  over 
the  property,  exerts  its  authority  over  all  the  incidents,  and  will 
shape  its  decree  as  the  circumstances  of  the  case  may  require. 

28  *  2  R 


CHAPTER    XXXII. 

RIGHTS  OF  MILITARY  OCCUPATION. 

§  1.  Distinction  between  military  occupation  and  complete  con- 
quest. The  term  conquest^  as  it  is  ordinarily  used,  is  applicable 
to  conquered  territory  the  moment  it  is  taken  from  the  enemy; 
but,  in  its  more  limited  and  technical  meaning,  it  includes  only 
the  real  property  to  which  the  conqueror  has  acquired  a  com- 
plete  title.  Until  the  ownership  of  such  property  so  taken  is 
confirmed  or  made  complete,  it  is  held  by  the  right  of  military 
occupation,  [occupatio  bellica,)  which,  by  the  usage  of  nations 
and  the  laws  of  war,  differs  from,  and  falls  far  short  of,  the 
right  of  eonplete  conquest,  [debelatio  ultima  victoria.)  The  right 
of  one  belligerent  to  occupy  and  govern  the  territory  of  the 
enemy  while  in  its  military  possession,  is  one  of  the  incidents 
of  war,  and  flows  directly  from  the  right  to  conquer.  We, 
therefore,  do  not  look  to  the  constitution,  or  political  institu- 
tions of  the  conqueror,  for  authority  to  establish  a  government 
for  the  territory  of  the  enemy  in  his  possession,  during  its  mili- 
tary occupation,  nor  for  the  rules  by  which  the  powers  of  such 
government  are  regulated  and  limited.  Such  authority,  and 
such  rules,  are  derived  directly  from  the  laws  of  war,  as  estab- 
lished by  the  usage  of  the  world,  and  confirmed  by  the  writings 
of  publicists,  and  the  decisions  of  courts — in  fine,  from  the  law 
of  nations.  But,  when  the  conquest  is  made  complete,  in  what- 
soever mode,  the  right  to  govern  the  acquired  territory  follows 
as  the  inevitable  consequence  of  the  right  of  acquisition,  and 
the  character,  form,  and  powers  of  the  government  established 
over  such  conquered  territory,  are  determined  by  the  constitu- 

330 


CH.  XXXIL— MILITARY  OCCUPATION.  381 

tion  and  laws  of  the  state  which  acquires  it,  or  with  which  it  is 
incorporated. 

§  2.  When  rights  of  military  occupation  begin.  We  will  here 
consider  the  question,  when  do  the  rights  of  military  occupation 
begin,  or  how  are  we  to  fix  the  date  of  a  conquest?  Bouvier 
defines  a  conquest  to  be,  "the  acquisition  of  the  sovereignty  of 
a  country  by  force  of  arms,  exercised  by  an  independent  power, 
which  reduces  the  vanquished  to  the  submission  of  its  empire.'^ 
It  follows,  then,  that  the  rights  of  military  occupation  extend 
over  the  enemy's  territory  only  so  far  as  the  inhabitants  are  van- 
quished or  reduced  to  submission  to  the  rule  of  the  conqueror. 
Thus,  if  a  fort,  town,  city,  harbor,  island,  province,  or  particular 
section  of  country  belonging  to  one  belligerent,  is  forced  to  sub- 
mit to  the  arms  of  the  other,  such  place  or  territory  instantly 
becomes  a  conquest,  and  is  subject  to  the  laws  which  the  con- 
queror may  impose  on  it;  although  he  has  not  yet  acquired  the 
plenum  dominium  et  utile,  he  has  the  temporary  right  of  posses- 
sion and  government.  As  this  temporary  title  derives  its  valid- 
ity entirely  from  the  force  of  arms  on  the  one  side,  and  submis- 
sion to  such  force  on  the  other,  it  necessarily  follows  that  it 
extends  no  further,  and  continues  no  longer,  than  such  subju- 
gation and  submission  extend  and  continue. 

§  3.  Submission  sufficient.  It  must  not  be  inferred  from  what 
has  just  been  said,  that  the  conqueror  can  have  no  control  or 
government  of  hostile  territory  unless  he  actually  occupies  it 
with  an  armed  force.  It  is  deemed  sufficient  that  it  submits  to 
him  and  recognizes  his  authority  as  a  conqueror;  for  conquests 
are  in  this  way  extended  over  the  territory  of  an  enemy  without 
actual  occupation  with  armed  force. 

§  4.  Effect  upon  political  laws.  Political  laws,  as  a  general 
rule,  are  suspended  during  the  military  occupation  of  a  con- 
quered territory.  The  political  connection  between  the  people 
of  such  territory  and  the  state  to  which  they  belong  is  not  en- 
tirely severed,  but  is  interrupted  or  suspended  so  long  as  the 
occupation  continues.     Their  lands  and  immovable  property  are, 


332        INTERNATIONAL    LAW  AND  LAWS  OF  WAR. 

therefore,  not  subject  to  the  taxes,  rents,  etc.,  usually  paid  to  the 
former  sovereign.  These,  as  we  have  said  elsewhere,  belong  of 
right  to  the  conqueror,  and  he  may  demand  and  receive  their 
payment  to  himself. 

§  5.  Upon  municipal  laws.  The  municipal  laws  of  a  con- 
quered territory,  or  the  laws  which  regulate  private  rights,  con- 
tinue in  force  during  military  occupation,  except  so  far  as  they 
are  suspended  or  changed  by  the  act  of  the  conqueror.  Impor- 
tant changes  of  this  kind  are  seldom  made,  as  the  conqueror  has 
no  interest  in  interfering  with  the  municipal  laws  of  the  country 
which  he  holds  by  the  temporary  rights  of  military  occupation. 
He  nevertheless  has  all  the  powers  of  a  de  facto  government, 
and  can,  at  his  pleasure,  either  change  the  existing  laws,  or  make 
new  ones.  Such  changes,  however,  are,  in  general,  only  of  a 
temporary  character,  and  end  with  the  government  which  made 
them.  On  the  confirmation  of  the  conquest  by  a  treaty  of  peace, 
the  inhabitants  of  such  territory  are,  as  a  general  rule,  remitted 
to  the  municipal  laws  and  usages  which  prevailed  among  them 
prior  to  the  conquest.  Neither  the  civil  nor  the  criminal  juris- 
diction of  the  conquering  state  is  considered,  in  international 
law,  as  extending  over  the  conquered  territory  during  military 
occupation.  Although  the  national  jurisdiction  of  the  con^ 
quered  power  is  replaced  by  that  of  military  occupation,  it  by 
no  means  follows  that  this  new  jurisdiction  is  the  same  as  that 
of  the  conquering  state.  On  the  contrary,  it  is  usually  very 
different  in  its  character,  and  always  distinct  in  its  origin. 
Hence,  the  ordinary  jurisdiction  of  the  conquering  state  does 
not  extend  to  actions,  whether  civil  or  criminal,  originating  in 
the  occupied  territory. 

§  6.  Punishment  of  crimes  in  such  territory.  How  then  are 
crimes  to  be  punished  which  are  committed  in  territory  occu- 
pied by  force  of  arms,  but  which  are  not  of  a  military  character 
nor  provided  for  in  the  military  code  of  the  conquering  state  ? 
To  solve  this  question  it  will  be  sufficient  to  recur  to  the  prin- 
ciples already  laid  down.     Although  the  laws  and  jurisdiction 


OR.  XXXIL— MILITARY  OCCUPATION.  333 

of  the  conquering  state  do  not  extend  over  such  foreign  terri- 
tory, yet  the  laws  of  war  confer  upon  it  ample  power  to  govern 
such  territory,  and  to  punish  all  offenses  and  crimes  therein  by 
whomsoever  committed.  The  trial  and  punishment  of  the 
guilty  parties  may  be  left  to  the  ordinary  courts  and  authorities 
of  the  country,  or,  they  may  be  referred  to  special  tribunals  or- 
ganized for  that  purpose  by  the  government  of  military  occupa- 
tion ;  and  where  they  are  so  referred  to  special  tribunals,  the 
ordinary  jurisdiction  is  to  be  considered  as  suspended  quoad  hoc. 
It  must  be  remembered  that  the  authority  of  such  tribunals  has 
its  source,  not  in  the  laws  of  the  conquering,  nor  in  those  of  the 
conquered  state,  but,  like  any  other  powers  of  the  government 
of  military  occupation,  in  the  laws  of  war ;  and,  in  all  cases 
not  provided  for  by  the  laws  actually  in  force  in  the  conquered 
territory,  such  tribunals  must  be  governed  and  guided  by  the 
principles  of  universal  public  jurisprudence. 

§  7.  Effect  of  military  occupation  under  the  laws  of  England. 
It  is  said  by  English  writers,  that  when  a  country  has  been 
conquered  by  British  arms,  it  immediately  becomes  a  dominion 
of  the  king  in  right  of  his  crown,  and  that  the  inhabitants  of 
such  conquered  territory,  once  received  under  the  king^s  protec- 
tion, become  his  subjects  and  are  universally  to  be  regarded  in  that 
light,  and  not  as  enemies  or  aliens.  In  other  words,  foreign  terri- 
tory becomes  a  dominion,  and  its  inhabitants  the  subjects  of  the 
king,  ipso  facto,  by  the  conquest  made  by  the  British  arms,  with- 
out any  action  of  the  legislature, — the  parliament  of  Great  Britain. 

§  8.  Under  the  constitution  of  the  United  States.  But  a  differ- 
ent rule  holds  in  the  United  States.  The  peculiar  character  of 
our  government,  and  the  powers  vested  in  it  by  the  federal  con- 
stitution, have  given  rise  to  rules  somewhat  peculiar  and  anom- 
alous, with  respect  to  the  government  of  conquered  territory. 
The  President,  in  the  exercise  of  his  constitutional  power  as 
commander-in-chief  of  the  army,  and  the  military  ofBcers  under 
his  authority,  may,  when  war  has  been  declared,  seize  the 
enemy's  possessions,  and  establish  a  government  and  laws  for 


334        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

the  territory  so  seized  and  occupied.  Such  territory  is  subject 
to  the  sovereignty  and  dominion  of  the  United  States  as  soon 
as  the  enemy  is  driven  out  or  submits  to  our  arms.  But  neither 
the  President  nor  his  officers  can  extend  the  limits,  or  enlarge 
the  boundaries  of  the  union.  This  can  only  be  done  by  con- 
gress. As  the  institutions  and  laws  of  the  United  States  do  not 
extend  beyond  the  limits  before  assigned  to  them  by  the  legisla- 
tive power,  the  inhabitants  of  a  conquered  territory,  during  its 
military  occupation  by  the  United  States,  can  claim  none  of 
the  rights  and  privileges  establislied  by  such  laws.  And  even 
where  these  institutions  and  laws  are  adopted  by  the  govern- 
ment of  military  occupation,  the  rights  which  they  confer  upon 
the  inhabitants  of  the  conquered  territory,  do  not  extend  to  the 
states  or  territories  of  the  United  States.  The  conquered  terri- 
tory is  under  the  sovereignty  and  authority  of  the  union  ;  but  it 
is  not  a  part  of  the  United  States ;  nor  does  it  cease  to  be  a 
foreign  country,  or  its  inhabitants  cease  to  be  aliens,  in  the  sense 
in  which  these  words  are  used  in  our  laws.  They  are  to  be 
governed  by  martial  law,  as  regulated  and  limited  by  public  law. 
§  9.  Relations  of  inhabitants  in  regard  to  foreign  states.  The 
relations  between  the  inhabitants  of  such  conquered  territory 
and  foreign  nations,  are,  therefore,  very  different  from  the  rela- 
tions between  the  people  of  the  United  States  and  such  nations, 
as  previously  established  by  treaties  and  commercial  law.  The 
intercourse  of  foreign  nations  with  such  territory,  is  regulated 
by  the  government  of  occupation,  under  the  direction  of  the  Pre- 
sident of  the  United  States,  as  commander-in-chief  of  the  army, 
or,  in  other  words,  by  martial  law.  Hence,  the  scale  of  duties 
on  goods  imported  into  the  conquered  territory,  and  the  ton- 
nage on  vessels  entering  its  ports,  may  be  different  from  those 
on  vessels  and  goods  brought  into  the  United  States.  The  vic- 
tor may  either  prohibit  all  commercial  intercourse  with  his  con- 
quest, or  place  upon  it  such  restrictions  and  conditions  as  may 
be  deemed  suitable  to  his  purpose.  To  allow  intercourse  at  all, 
is  a  relaxation  of  the  rights  of  war. 


CH.  XXXIL— MILITARY  OCCUPATION.  3.35 

§  10.  In  regard  to  States  of  the  union.  So,  also,  the  rules  of 
intercourse  and  trade,  between  the  inhabitants  of  the  United 
States  and  such  conquered  territory,  may  be  very  different  from 
the  rules  regulating  the  intercourse  and  trade  between  different 
parts  of  the  union.  An  American  vessel  entering  a  port  of  the 
conquered  territory,  during  its  military  occupation  by  the 
United  States,  must  conform  to  the  regulations  adopted,  and 
pay  the  duties  exacted,  by  the  government  of  such  territory ; 
and  an  American  vessel,  returning  to  the  United  States  from  a 
port  of  such  territory,  is  regarded  as  coming  from  a  foreign 
port,  and  not  as  engaged  in  the  coasting  trade;  and  the  cargo 
is  not  exempt  from  the  payment  of  duties  as  fixed  by  the  laws 
of  the  United  States,  for  goods  imported  from  a  foreign 
country. 

§  11.  Collection  and  use  of  revenues  in  such  territory.  In  the 
absence  of  any  laws  of  Congress  on  this  subject,  the  regulating 
and  collecting  of  such  revenues  in  enemy's  territory  in  our  pos- 
session, devolves  upon  the  President  of  the  United  States,  as 
the  constitutional  commander-in-chief,  and  upon  the  military 
and  naval  officers  under  his  direction.  The  moneys  derived 
from  these  sources  may  be  used  for  the  support  of  the  govern- 
ment of  the  conquered  territory,  or  for  the  expenses  of  the  war. 

§  12.  Transfer  of  private  property.  As  military  occupation 
produces  no  effect,  (except  in  special  cases,  and  in  the  applica- 
tion of  the  severe  right  of  war,  by  imposing  military  contribu- 
tions and  confiscations)  upon  private  property,  it  follows  as  a 
necessary  consequence,  that  the  ownership  of  such  property  may 
be  changed  during  such  occupation  by  one  belligerent  of  the 
territory  of  the  other,  precisely  the  same  as  though  war  did  not 
exist.  The  right  to  alienate  is  incident  to  the  right  of  owner- 
ship, and  unless  the  ownership  be  restricted  or  qualified  by  the 
victor,  the  right  of  alienation  continues  the  same  during  his 
military  possession  of  the  territory  in  which  it  is  situate,  as  it 
was  prior  to  his  taking  the  possession.  A  municipality  or  cor- 
poration, has  the  same  right  as  a  natural  person  to  dispose  of  its 


336        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

property  during  a  war,  and  all  such  transfers  are,  prima  facie, 
as  valid  as  if  made  in  time  of  peace.  If  forbidden  by  the  con- 
queror, the  prohibition  is  an  exception  to  the  general  rule  of 
public  law,  and  must  be  clearly  established. 

§  13.  Our  own  territory  in  the  military  occupation  of  an  enemy. 
It  has  been  decided  that  any  part  of  our  own  territory  in  the 
military  occupation  of  an  enemy,  is  for  the  time  being,  so  far  as 
commercial  intercourse  is  concerned,  to  be  regarded  as  enemy's 
territory,  and  subject  to  the  enemy \s  laws. 

§  14.  Neutral  territory  so  occupied.  So  also  of  neutral  terri- 
tory. If  our  enemy  is  in  military  occupation  of  a  town  or  port 
of  a  third  power  friendly  to  us,  such  place  must,  so  long  as  such 
occupation  continues,  be  regarded  as  hostile  territory. 

§  15.  Allegiance  of  inhabitants  of  occupied  territory.  It  may 
be  stated,  as  a  general  proposition,  that  the  duty  of  allegiance 
is  reciprocal  to  the  duty  of  protection.  Wlien,  therefore,  a  state 
is  unable  to  protect  a  portion  of  its  territory  from  the  superior 
force  of  an  enemy,  it  loses,  for  the  time,  its  claim  to  the  alle- 
giance of  those  whom  it  fails  to  protect,  and  the  inhabitants  of 
the  conquered  territory  pass  under  a  temporary  or  qualified  alle- 
giance to  the  conqueror.  The  sovereignty  of  the  state  which  is 
thus  unable  to  protect  its  territory  is  displaced,  and  that  of  the 
conqueror  is  substituted  in  its  stead. 

§  16.  Implied  obligations  of  the  conquered.  In  ancient  times, 
when  a  city  or  district  of  country  was  conquered,  the  principal 
male  inhabitants,  capable  of  resistance,  were  put  to  tlie  sword. 
This  was  an  exercise  of  the  extreme  right  of  war,  and  justified 
on  the  ground  of  necessity,  as  the  hostility  and  continued  resist- 
ance of  the  inhabitants  of  the  conquered  place  would  otherwise 
prevent  the  conqueror  from  pursuing  his  military  operations, 
for  the  purpose  of  securing  the  object  of  the  war.  But,  in  more 
civilized  ages,  when  a  place  is  taken  by  one  of  the  belligerents, 
and  the  people  lay  down  their  arms,  tiiey  are  allowed  to  con- 
tinue their  ordinary  peaceful  occupations,  without  hindrance  or 
restraint,  but  with  the  tacit  or  implied  agreement,  that  they  will 


CH.  XXXIL— MILITARY  OCCUPATION.  337 

oppose  no  further  resistance  to  the  power  of  the  conqueror. 
They  are  virtually  in  the  condition  of  prisoners  of  war  on  pa- 
role. No  word  of  honor  has  been  given,  but  it  was  implied ; 
for  only  on  that  condition  would  the  conqueror  have  relin- 
quished the  extreme  right  of  war  which  he  held  over  their  lives, 
and  have  suffered  them  freely  and  peacefully  to  pursue  their 
ordinary  avocations. 

§  17.  Military  insurrections.  When  any  of  the  inhabitants 
of  territory  in  the  military  occupation  of  an  enemy,  violate 
these  implied  obligations  and  rise  upon  their  conquerors,  they 
become  war-rebels  or  military  insurgents,  and,  as  already  stated, 
are  liable  to  be  punished  with  death. 

§  18.  Alienations  of  territory  occnpied  by  an  enemy.  Military 
occupation,  as  has  already  been  stated,  suspends  the  sovereignty 
and  dominion  of  the  former  owner  so  long  as  the  conquered 
territory  remains  in  the  possession  of  the  conqueror,  or  in  that 
of  his  allies.  The  temporary  dominion  of  the  latter  completely 
excludes,  for  the  time  being,  the  original  dominion  of  the 
former.  The  vanquished  sovereign,  therefore,  has  no  power,  as 
against  the  conqueror,  to  alienate  any  part  of  his  own  territory 
which  may  be  at  the  time  in  the  possession  of  the  latter.  If 
the  conquest  be  completed,  or  confirmed,  the  title  passes  to  the 
conqueror  precisely  as  it  was  when  the  latter  first  acquired  the 
possession.  No  other  party  can  claim  any  rights  over  it  arising 
from  any  conveyance  or  transfer  from  the  vanquished,  while  it 
was  in  the  conqueror's  possession.  But,  if  it  be  surrendered  up 
to  the  former  j^ner,  or  recovered  by  him,  such  conveyances 
would  become  valid,  for  the  alienor  would  not  be  permitted  to 
deny  his  own  act.  It  is  a  principle  of  jurisprudence  that  pos- 
session ofy  and  the  right  to,  the  thing  alienated — ^the  jus  ad  rem 
and  thQJus  in  re — are  necessary  in  the  grantor  in  order  to  con- 
stitute a  complete  title.  During  military  occupation  these  exist 
together  neither  in  the  original  owner,  nor  in  the  conqueror. 
The  title  conveyed  by  either  is  therefore  imperfect ;  if  ^by  the 
former,  it  is  made  good  by  a  restoration  of  the  conquest ;  and, 

29  2  S 


338        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

if  by  the  latter,  it  is  completed  by  a  confirmation  of  the  conquest, 
whether  by  treaty  or  any  other  mode  recognized  in  international 
law. 

§  19.  Effect  of  military  occupation  on  incorporeal  rights.  In 
considering  the  effect  of  military  occupation  on  incorporeal  rights 
we  must  distinguish  those  attached  to  tilings  and  those  attached 
to  persons.  While  the  possession  of  a  house  or  land  may  include 
incorporeal  rights  belonging  to  the  same,  the  possession  of  an 
enemy's  person  does  not  give  us  a  right  to  the  debts  which  may 
be  due  him.  Moreover,  notes,  mortgages,  etc.,  are  only  evidences 
of  debts,  but  not  the  debts  themselves. 

§  20.  Debts  due  the  displaced  government.  If  the  debt,  from 
whomsoever  owing,  be  paid  to  the  government  of  military  occu- 
pation, and  the  conquest  is  afterward  made  complete,  no  question 
as  to  the  legality  of  the  payment  can  subsequently  arise.  But 
should  the  former  sovereign  or  government,  after  a  lapse  of 
time,  be  restored,  and  the  debtor  has  received  his  discharge, 
may  the  original  creditor  demand  a  second  payment?  The 
burden  of  proof,  in  such  a  case,  lies  upon  the  debtor ;  and  in 
order  to  render  the  payment  valid,  and  make  it  operate  as  a 
complete  discharge  of  the  debt,  he  must  show :  1st,  that  the  sum 
was  actually  paid,  for  an  acquittance  or  a  receipt,  without  actual 
payment,  is  no  bar  to  the  demand  of  the  original  creditor ;  2d, 
that  the  debt  was  actually  due  at  the  time  when  it  was  paid ;  3d, 
that  the  payment  has  not  been  delayed  by  a  mora  on  the  part 
of  the  debtor,  which  had  thus  operated  to  defeat  the  claim  of 
the  original  creditor.  If  the  debtor  be  a  citizen  of  the  conquered 
country,  or  a  subject  of  the  conqueror,  he  must  also  show :  4th, 
that  the  payment  was  compulsory, — the  effect  of  a  vis  major 
upon  the  debtor, — not  necessarily  extorted  by  the  use  of  physi- 
cal force,  but  paid  under  an  order,  the  disobedience  of  which 
was  threatened  with  punishment.  If  the  debtor  be  a  neutral  or 
stranger,  he  cannot  plead  compulsion  as  a  justification  of  his 
making  payment  to  the  conqueror,  but  he  must  also  show :  5th, 
that  the  constitutional  law  of  the  state  recognized  the  payment, 


CH.  XXXIL— MILITARY  OCCUPATION.  339 

as  made  by  him,  to  be  valid ;  in  other  words,  that  it  was  made 
in  good  faith,  and  to  the  de  jacio  authority  authorized  by  the 
fundamental  laws  to  receive  it.  It  is  not  a  necessary  condition, 
but  it  is  a  substantive  defense  against  the  original  creditor,  that 
the  money  has  been  applied  to  his  benefit ;  thus,  in  the  case  of  a 
state  creditor,  if  the  money  has  been  applied  to  the  benefit  of 
the  state, — if  there  has  been  what  the  civilians  term  a  versio  in 
rerrif — the  payment  will  be  regarded  as  valid. 


CHAPTER    XXXIII. 

RIGHTS  OF  COMPLETE  CONQUEST. 

§  1.  Conquest,  how  completed.  As  already  remarked,  the  con- 
queror's title  to  immovable  property  taken  from  the  enemy,  may 
be  completed  in  various  ways,  as,  by  a  treaty  of  peace  or  of 
cession,  by  entire  subjugation  and  the  incorporation  with  the 
conquering  state,  by  civil  revolution  and  the  consent  of  the 
inhabitants,  or  by  the  mere  lapse  of  time  and  the  inability  of 
the  former  sovereignty  to  recover  its  lost  possessions. 

§  2.  Acquisition  of  parts  of  a  state.  The  conqueror  who  ac- 
quires a  province  or  town  from  the  enemy,  acquires  thereby  the 
same  rights  which  were  possessed  by  the  state  from  which  it  is 
taken.  If  it  formed  a  constituent  part  of  the  hostile  state,  and 
was  fully  and  completely  under  its  dominion,  it  passes  into  the 
power  of  the  conqueror  upon  the  same  footing.  It  is  united 
with  the  new  state  upon  the  same  terms  on  which  it  belonged  to 
the  old  one ;  that  is,  with  only  such  political  rights  as  the  con- 
stitution and  laws  of  the  new  state  may  see  fit  to  give  it. 

§  3.  Subjugation  of  an  entire  state.  If  the  hostile  nation  be 
subdued  and  the  entire  state  conquered,  a  question  arises  as  to 
the  manner  in  which  the  conqueror  may  treat  it  without  trans- 
gressing the  just  bounds  established  by  the  rights  of  conquest. 
If  he  simply  replaces  the  former  sovereign,  and,  on  the  submis- 
sion of  the  people,  governs  them  according  to  the  laws  of  the 
state,  they  can  have  no  cause  of  complaint.  Again,  if  he  incor- 
porate them  with  his  former  states,  giving  to  them  the  rights, 
privileges  and  immunities  of  his  own  subjects,  he  does  for  them 
all  that  is  due  from  a  humane  and  equitable  conqueror  to  his 

340 


CH.  XXXI IL— COMPLETE  CONQUEST.  341 

vanquished  foes.  "But  if  the  conquered  are  a  fierce,  savage  and 
restless  people,  he  may,  according  to  the  degree  of  their  indo- 
cility,  govern  them  with  a  tighter  rein,  so  as  to  curb  their 
impetuosity,  and  to  keep  them  under  subjection." 

§  4.  Retroactive  effect  of  confirmation  of  conquest.  We  have 
already  remarked,  that  when  one  belligerent  acquires  military 
possession  of  territory  belonging  to  an  enemy,  the  sovereignty 
and  dominion  of  the  latter  is  suspended.  If  such  possession  be 
retained  till  the  completion  or  confirmation  of  the  conquest,  the 
temporary  dominion  thus  acquired  by  the  conqueror  becomes 
full  and  complete,  plenum  dom'mium  et  utile.  Moreover,  this 
confirmation  or  completion  of  the  conquest  has,  so  far  as  owner- 
ship is  concerned,  a  retroactive  eifect,  confirming  the  conqueror's 
title  from  the  date  of  the  conquest,  and,  therefore,  making  defini- 
tively valid  his  acts  of  ownership — ^alienation  included — during 
his  military  occupation. 

§  5.  Transfer  of  personal  allegiance  by  conquest.  It  is  a  gene- 
ral rule  of  international  law  that,  on  the  transfer  of  territory 
by  complete  conquest  or  cession,  the  allegiance  of  the  inhabi- 
tants of  the  conquered  or  ceded  territory,  is  transferred  to  the 
new  sovereign.  Even  the  perpetual  allegiance  of  the  English 
common  law  yields  to  treaty,  and  it  is  held  that  when  the  king 
cedes  by  treaty,  the  inhabitants  of  the  ceded  territory  become 
aliens.  In  the  absence  of  express  treaty  stipulations,  or  legisla- 
tion by  the  conqueror,  the  relations  between  the  conquered  and 
the  conqueror,  are  determined  by  the  law  of  nations,  which 
establishes  the  general  rule,  that  the  allegiance  of  the  conquered 
is  transferred  to  the  new  sovereign.  It  was  held  by  the  early 
civilians  that  such  transfer  of  allegiance  was  absolute  and  un- 
conditional, unless  otherwise  provided  by  some  treaty  stipula- 
tion ;  but  the  rule,  as  now  understood  and  interpreted,  is  more 
liberal  and  just  towards  the  inhabitants  of  the  conquered  terri- 
tory. 

§  6.  The  assent  of  the  subject  required.  The  express  or  im- 
plied consent  of  tlie  subject  is  now  regarded  as  essential  to  a 

29  « 


342        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

complete  new  allegiance.  The  ligament  Avhich  bound  him  to 
the  former  sovereign  is  dissolved  by  the  transfer  of  the  terri- 
tory, for  that  sovereign  can  no  longer  afford  him  any  protection 
in  that  territory.  But  he  is  still  an  alien  to  the  new  sovereign, 
and  owes  to  him  only  that  kind  of  allegiance  called  in  law, 
local  or  temporary  J  and  which  is  due  from  any  alien,  while  re- 
sident in  a  foreign  country,  for  the  protection  which  is  afforded 
him  by  the  government  of  such  country.  If  the  inhabitants 
of  the  ceded  conquered  territory  choose  to  leave  it  on  its  trans- 
fer, and  to  adhere  to  their  former  sovereign,  they  have,  in  gen- 
eral, a  right  to  do  so.  None  but  an  absolute  and  tyrannical 
sovereign  would  force  tliem  to  remain  and  become  his  unwilling 
subjects. 

§  7.  Such  assent  detennined  by  domicil.  If  they  remain  in 
the  territory  after  its  transfer,  they  are  deemed  to  have  elected 
to  become  its  subjects,  and  thus  have  consented  to  the  transfer 
of  their  allegiance  to  the  new  sovereignty.  If  they  leave,  sine 
animo  revertendi,  they  are  deemed  to  have  elected  to  continue 
aliens  to  the  new  sovereignty.  The  status  of  the  inhabitants  of 
the  conquered  and  transferred  territory,  is  thus  determined  by 
their  own  acts.  This  rule  is  the  most  just,  reasonable  and  con- 
venient, which  could  be  adopted.  It  is  reasonable  on  the  part 
of  the  conqueror,  who  is  entitled  to  know  who  become  his  sub- 
jects, and  who  prefer  to  continue  aliens ;  it  is  very  convenient 
for  those  who  wish  to  become  the  subjects  of  the  new  state ;  and 
is  not  unjust  toward  those  who  determine  not  to  become  its  sub- 
jects. According  to  this  rule,  domicil,  as  understood  and  de- 
fined in  public  law,  determines  the  question  of  transfer  of  alle- 
giance, or  rather,  is  the  rule  of  evidence  by  which  that  question 
is  to  be  decided. 

§  8.  Reason  of  this  rule.  This  rule  of  evidence,  with  respect 
to  the  allegiance  of  the  inhabitants  of  ceded  conquered  territory, 
may  be  inconvenient  to  those  who  do  not  become  subjects  of  the 
new  sovereignty,  as  it  requires  them  to  change  their  domicil; 
but  it  is  necessary  for  the  protection  of  the  rights  of  those  who 


CH.  XXXIIL— COMPLETE  CONQUEST.  343 

elect  to  become  subjects  of  the  new  government,  and  especially 
necessary  for  determining  the  rights  and  duties  of  the  govern- 
ment which  acquires  their  allegiance,  and  is  bound  to  aiford 
them  its  protection.  It  would  not  do  to  leave  the  status  of  the 
inhabitants  of  the  acquired  territory,  uncertain  and  undeter- 
mined, and  to  suffer  a  man's  citizenship  to  continue  an  open 
question  subject  to  be  disputed  by  any  person  at  any  time,  and 
to  change  with  his  own  intentions  and  resolutions,  as  might  best 
suit  his  convenience  or  interest. 

§  9.  Its  application  to  foreign  residents.  This  modern  and 
more  benign  construction  of  the  law  of  nations,  with  respect  to 
the  allegiance  of  the  inhabitants  of  conquered  or  ceded  territory, 
as  announced  by  Chief  Justice  Marshall,  avoids  all  questions  of 
the  right  of  the  one  state  to  transfer,  and  of  the  other  to  claim, 
the  allegiance  of  subjects  of  neutral  states  who  are  naturalized 
or  domiciled  in  the  territory  transferred  by  conquest  or  treaty. 
All  are  alike  aliens  to  the  new  sovereignty,  if  they  elect  to  con- 
tinue so,  and  all  become  its  subjects,  if  it  consents  to  receive 
them,  and  they,  by  remaining  in  the  transferred  territory,  sig- 
nify their  election  to  become  such. 

§  10.  Rule  may  be  varied  by  treaty,  etc.  The  inconveniences 
to  those  who  do  not  transfer  their  allegiance,  arising  from  mak- 
ing the  law  of  domicil  the  rule  of  evidence  by  which  to  deter- 
mine the  consent  of  the  conquered,  may  be  avoided  by  treaty 
stipulations,  or  by  the  municipal  laws  of  the  conqueror.  Pro- 
visions are  sometimes  made  in  treaties  for  special  modes  by 
which  the  inhabitants  of  ceded  territory  shall  exercise  their 
right  of  election  otherwise  than  by  domicil,  such  as  judicial 
declarations  and  public  registrations  of  intentions. 

§  11.  Right  to  citizenship  under  new  sovereignty.  It  may  be 
laid  down  as  a  general  rule,  that  the  inhabitants  of  a  conquered 
territory  who  remain  in  it,  become  citizens  of  the  new  state ; 
for  justice  would  seem  to  require  that  the  rights  of  citizenship 
should  be  given  to  them  in  return  for  their  allegiance.  But  this 
general  rule  of  justice  must  yield  to  the  conditions  upon  which 


344        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

the  conquered  are  incorporated  into  the  new  state,  and  to  the 
peculiar  character  of  the  institutions  and  municipal  laws  of  the 
conqueror.  It  could  not  reasonably  be  expected  that  the  con- 
quering state  would  modify  or  change  its  laws  and  political  in- 
stitutions by  the  mere  act  of  incorporating  into  it  the  inhabi- 
tants of  a  conquered  territory. 

§  12.  English  law  on  this  subject.  As  has  already  been  re- 
marked, the  laws  of  different  countries  with  respect  to  the 
relations  between  the  conqueror  and  the  inhabitants  of  an  ac- 
quired conquered  territory,  are  very  different.  The  rules  of 
English  law  on  this  subject  are,  that  "  a  country  conquered  by 
the  British  arms  becomes  a  dominion  of  the  king  in  the  right 
of  his  crown,  *  *  *  that  the  conquered  inhabitants  once 
received  under  the  king's  protection,  become  subjects,  and  are  to 
be  universally  considered  in  that  light,  not  as  enemies  or 
aliens.'^  Although  they  owe  the  allegiance  of  subjects,  and  are 
entitled  to  the  protection  of  subjects,  it  does  not  follow  that  they 
are  entitled  to  all  the  political  rights  of  an  Englishman  in  Eng- 
land. They  have  the  rights  of  British  subjects  in  the  conquered 
territory,  but  not  necessarily  the  political  rights  of  British  sub- 
jects hi  other  parts  of  the  empire. 

§  13.  American  decisions.  The  supreme  court  of  the  United 
States  has  also  decided  that,  although  the  inhabitants  of  an  ac- 
quired territory,  are  entitled  to  the  privileges,  rights  and  immu- 
nities of  citizens  of  the  United  States,  they  cannot  participate 
in  political  power  till  such  territory  becomes  a  state  of  the 
union. 

§  14.  Laws  of  the  conquered  territory.  "  On  the  transfer  of 
territory,''  says  Chief  Justice  Marshall,  "  it  has  never  been  held 
that  the  relations  of  the  inhabitants  with  each  other  undergo 
any  change.  Their  relations  with  their  former  sovereign  are 
dissolved,  and  new  relations  are  created  between  them  and 
the  government  which  has  acquired  their  territory ; — the  law, 
which  may  be  denominated  political,  is  necessarily  changed, 
although  that  which  regulates  the  intercourse  and  general  con- 


CH.  XXXIIL— COMPLETE  CONQUEST.  345 

duct  of  individuals,  remains  in  force  until  altered  by  the  newly 
created  power  of  the  state."  This  is  now  a  well  settled  rule  of 
the  law  of  nations,  and  is  universally  admitted. 

§  15.  Conquered  territory  under  British  law.  It  is  held  in 
English  law  that  if  the  king  comes  to  a  kingdom  by  conquest, 
he  may  change  and  alter  the  laws  of  that  kingdom ;  but  if  he 
comes  to  it  by  title  and  descent,  he  cannot  change  the  laws  of 
himself  without  the  consent  of  parliament. 

§  16.  Under  the  United  States.  But  the  President  of  the 
United  States  can  make  no  treaty  without  the  concurrence  of 
two-thirds  of  the  senate,  and  his  authority  over  ceded  conquered 
territory,  though  derived  from  the  law  of  nations,  is  limited  by 
the  constitution  and  subordinate  to  the  laws  of  congress.  It, 
however,  is  well  settled  by  the  supreme  court,  that,  as  constitu- 
tional commander-in-chief,  he  is  authorized  to  form  a  civil  or 
military  goverimient  for  the  conquered  territory  during  the  war, 
and  that  when  such  territory  is  ceded  to  the  United  States,  as  a 
conquest,  the  existing  government,  so  established,  does  not  cease 
as  a  matter  of  course  or  as  a  consequence  of  the  restoration  of 
peace ;  that,  on  the  contrary,  such  government  is  rightfully  con- 
tinued after  the  peace,  and  till  congress  legislates  otherwise. 

§  17.  How  far  laws  of  military  occupation  continue  after  com- 
plete conquest.  We  have  already  remarked,  that  the  relations 
of  the  inhabitants  of  the  conquered  territory,  inter  se,  are  not, 
in  general,  changed  by  the  act  of  conquest  and  military  occupa- 
tion ;  nevertheless,  that  the  conqueror,  exercising  the  powers  of 
a  de  facto  government,  may  suspend  or  alter  the  municipal  laws 
of  the  conquered  territory,  and  make  new  ones  in  their  stead. 
Such  changes  are  of  two  kinds,  viz. :  those  which  relate  to  a 
suspension  of  civil  rights  and  civil  remedies,  and  the  substitu- 
tion of  military  laws,  and  military  courts  and  proceedings ;  and 
those  which  relate  to  the  introduction  of  new  municipal  laws, 
and  new  legal  remedies  and  civil  proceedings.  There  can  be  no 
doubt  that  when  the  war  ceases,  the  inhabitants  of  the  ceded 
conquered  territory  cease  to  be  governed  by  the  code  of  war.   Al- 

2T 


846        INTERNATIONAL    LAW  AND  LAWS  OF  WAR, 

though  the  government  of  military  occupation  may  continue 
the  rules  of  its  authority  are  essentially  changed.  It  no  longer 
administers  the  laws  of  war,  but  only  those  of  peace.  The 
governed  are  no  longer  subject  to  the  severity  of  the  code  mili- 
tary, but  are  remitted  to  their  rights,  privileges  and  immunities, 
under  the  code  civil.  Hence,  any  laws,  rules,  or  regulations 
introduced  by  the  government  of  military  occupation  during 
the  war,  which  infringe  upon  the  civil  rights  of  the  inhabitants, 
necessarily  cease  with  the  war  in  which  they  had  their  origin, 
and  from  which  they  derived  their  force. 

§  18.  Laws  of  conquered  territory  opposed  to  constitution  of  the 
new  state.  There  is  no  doubt  that  all  municipal  laws  of  the 
conquered  territory  in  conflict  with  the  constitution  of  the  con- 
quering state  are  annulled  by  the  aet  which  completes  the 
conquest. 

§  19.  To  the  laws  of  the  new  sovereignty.  The  same  may 
be  said  of  those  which  conflict  with  such  laws  of  the  conqueror 
as  by  their  nature,  or  by  legislative  provisions,  extend  or  apply 
to  the  newly  acquired  territory. 

§  20.  Implied  will  of  the  conqueror.  When  it  is  said  that  the 
law  political  ceases  on  the  conquest,  and  that  the  law  municipal 
continues  till  changed  by  the  will  of  the  conqueror,  it  is  not 
meant  that  these  latter  laws,  proprio  vigore,  remain  in  force,  but 
that,  it  is  presumed,  the  new  political  sovereign  has  adopted  and 
continued  them  as  a  matter  of  convenience.  They  do  not  derive 
any  force  from  the  will  of  the  conquered,  for  the  person  capable 
of  having  and  expressing  a  will — the  body  politic,  or  law- 
making power  of  the  conquered — is  extinguished  by  the  conquest. 
When,  therefore,  we  come  to  pronounce  upon  the  force  of  a  law 
of  the  conquered  people  after  the  conquest,  and  to  determine 
whether  it  has  been  tacitly  adopted  by  the  conqueror,  we  must 
look  to  the  character  of  its  provisions,  and  compare  them  with 
the  laws  and  institutions  of  the  conquering  state ;  that  is,  with 
the  will  of  the  conqueror  as  expressed  by  himself  in  similar 
matters.     Whatever  is  in  conflict  with,  or  directly  opposed  to 


CH.  XXXIIL— COMPLETE  CONQUEST.  347 

such  expressions  of  his  will,  we  cannot  presume  to  have  been 
adopted  by  his  tacit  consent. 

§  21.  Distinction  in  English  law  between  conquered  and  dis- 
covered territory.  The  English  courts  make  a  distinction 
between  ceded  or  conquered  territory,  and  territory  acquired  by 
discovery,  or  occupancy,  and  peopled  by  the  discoverer.  British 
colonists  are  considered  as  carrying  with  them  such  laws  of  their 
sovereign  as  are  beneficial  to  the  colony  and  applicable  to  the 
new  condition  of  the  colonists ;  but  penal  laws,  inflicting  for- 
feitures and  disabilities,  laws  of  tithes,  bankruptcy,  mortmain, 
and  police,  do  not  extend  to  colonies  not  in  esse.  And  laws 
passed  after  the  settlement  of  a  discovered  or  occupied  country 
do  not  affect  such  colony,  without  special  provisions  to  that 
effect,  unless  they  relate  to  the  exercise  of  the  powers  of  the 
sovereign  with  regard  to  foreign  relations,  navigation,  trade, 
revenue,  and  shipping.  But  the  rule  is  different  with  respect  to 
territory  acquired  by  cession  or  conquest,  for  the  municipal  laws 
of  such  territory  at  the  time  of  its  acquisition  remain  till  changed 
by  competent  authority,  and  the  subjects  of  the  new  sovereignty 
who  enter  such  newly  acquired  territory  do  not,  in  general, 
carry  with  them  the  laws  of  their  sovereign ;  but  with  respect 
to  their  rights  and  relations  inter  se,  they  are  in  the  same  condi- 
tion as  the  inhabitants  of  such  territory ;  that  is,  they  are 
governed  by  the  laws  and  usages  of  the  country  at  the  time  of 
the  conquest  or  session. 

§  22.  Decisions  of  U.  S.  Supreme  Court.  The  supreme  court 
of  the  United  States,  where  questions  of  this  kind  have  come 
before  that  tribunal,  have  adopted  the  decisions  of  the  English 
courts,  so  far  as  applicable  to  our  system  of  government. 

§  23.  Title  to  private  property.  As  the  new  state  merely  dis- 
places the  former  sovereignty,  and  acquires,  by  cession  or  com- 
plete conquest,  no  claim  or  title  whatever  to  private  property, 
whether  of  individuals,  municipalities,  or  corporations,  and,  as 
it  assumes  the  duties  and  obligations  of  the  former  sovereign 
with  respect  to  private  property  within  such  acquired  territory, 


348        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

it  is  consequently  bound  to  recognize  and  protect  all  private 
rights  in  lands,  whether  they  are  held  under  absolute  grants  or 
inchoate  titles,  for  property  in  land  includes  every  class  of  claim 
to  real  estate,  from  a  mere  inceptive  grant  to  a  complete,  absolute, 
and  perfect  title.  A  mere  equity  is  protected  by  the  law  of 
nations  as  much  as  a  strictly  legal  title. 

§  24.  Necessity  of  remedial  laws.  It  not  unfrequently  happens, 
however,  that  much  injustice  and  inconvenience  will  result  to 
the  owners  of  property  in  a  ceded  or  conquered  territory,  by  the 
transfer  of  themselves  and  their  property  from  one  system  of 
laws  to  another  very  diiferent  from  the  first,  and  wholly  inade- 
quate to  afford  remedies  for  a  violation  of  the  rights  of  property. 
And  as  the  laws  of  nations  and  the  usage  of  the  civilized 
world  impose  upon  the  new  sovereignty  the  duty  to  maintain 
and  protect  the  property  of  the  conquered  inhabitants,  it  is  bound 
to  take  the  necessary  steps  to  clothe  equities  with  legal  titles,  so 
as  to  bring  them  within  the  scope  of  legal  remedies  under  its 
own  laws. 

§  25.  Effect  of  conquest  on  the  property  of  the  state.  It 
follow^s,  from  the  principles  laid  down  in  this  and  the  preced- 
ing chapters,  that  complete  conquest,  by  whatever  mode  it  may 
be  perfected,  carries  with  it  all  the  rights  of  the  former  govern- 
ment ;  or,  in  other  words,  the  conqueror,  by  the  completion  of 
his  conquest,  becomes,  as  it  were,  the  heir  and  universal  succes- 
sor of  the  defunct  or  extinguished  state.  As  his  rights  are  no 
longer  limited  to  mere  occupation,  or  to  what  he  has  taken 
physically  into  his  possession,  they  extend  not  only  to  the  cor- 
poreal property  of  the  state,  as  real  estate  and  movables,  but 
also  to  its  incorporeal  property,  as  debts,  etc.  And  as  his 
imperium  has  become  established  over  the  whole  state,  he  is 
considered,  in  law,  as  in  possession  of  the  things^  (corpora,)  and 
the  rights  (jura,)  to  things  which  appertain  to  such  imperium^ 
and  may  use  and  dispose  of  them  as  his  own. 

§  26.  Alienations  by  conqueror  after  complete  conquest.  Hence 
it  has  been  universally  held  that  where  the  conquest  has  been 


CH.  XXXIIL— COMPLETE  CONQUEST.  349 

completed  all  alienations  of  public  property  by  the  conqueror 
are  valid,  and  cannot  be  revoked  by  his  successor,  even  though 
he  be  the  prior  sovereign. 

§  27.  Payment  of  state  debts  to  conqueror.  The  same  rule 
applies  to  the  payment  of  debts  due  the  conquered  state.  The 
conqueror  may  properly  claim  the  payment,  and  his  receipt  is  a 
bar  to  all  subsequent  claims. 

30 


CHAPTEE  XXXIY. 

TREATIES  OF  PEACE. 

§  1.  Peace,  the  end  and  object  of  war.  It  has  been  laid  down 
as  "an  unquestionable  projjosition  of  international  law,  that 
there  is  a  legal  as  well  as  a  moral  necessity  that,  with  the  ceas- 
ing of  the  causes  which  justified  the  inception  of  the  war,  the 
war  itself  should  cease/^  Vattel  enforces  the  obligation  to  seek 
peace  as  the  end  of  war,  and  argues  that  no  matter  how  just  the 
war  may  have  been  at  the  commencement,  it  must  not  be  con- 
tinued beyond  its  lawful  object,  which  is  to  procure  justice  and 
safety,  and  the  moment  an  equitable  compromise  can  be  pro- 
cured, it  should  cease. 

§  2.  Powers  to  make  war  and  peace  may  be  distinct.  The 
power  to  declare  war  does  not  necessarily  include  that  of  mak- 
ing a  treaty  of  peace.  These  two  powers  are  intimately  con- 
nected, and  the  latter  would  seem  naturally  to  follow  the  former. 
They  are,  therefore,  generally  associated  together,  though  not 
always. 

§  3.  In  the  United  States.  By  the  constitution  of  the  United 
States,  the  power  to  declare  war  is  vested  in  congress,  but  the 
treaty-making  power  is  vested  in  the  President  and  senate. 

§  4.  May  a  prisoner  of  war  make  a  treaty  of  peace  ?  Vattel 
holds  that  a  captive  sovereign  may  himself  negotiate  the  peace, 
and  promise  what  personally  depends  on  him ;  but  the  treaty 
does  not  become  obligatory  on  the  nation  till  ratified  by  itself, 
or  by  those  who  are  invested  with  the  public  authority  during 
the  prince's  captivity,  or,  finally,  by  the  sovereign  himself  after 
his  release.^' 

350 


Cff.  XXXIV.— TREATIES  OF  PEACE.  351 

§  5.  Implied  power  of  alienation  of  territory.  The  general 
authority  to  make  treaties  of  peace,  necessarily  implies  the 
power  to  stipulate  the  conditions  of  peace;  and  among  these 
may  properly  be  involved  the  cession  of  the  territory  and  other 
property  of  the  state,  as  well  as  the  right  of  sovereignty  or  jvs 
eminens  over  private  property.  "If,  then,"  says  Wheaton, 
"there  be  no  limitation  expressed  in  the  fundamental  laws  of  a 
state,  or  necessarily  implied  from  the  distribution  of  its  consti- 
tutional authorities,  on  the  treaty-making  power  in  this  respect, 
it  necessarily  extends  to  the  alienation  of  public  and  private 
property,  when  deemed  necessary  for  the  national  safety  or 
policy." 

§  6.  Duty  of  compensation  to  individuals.  With  respect  to  the 
duty  of  the  state  to  make  compensation  to  individuals,  and  the 
limits  to  that  duty,  the  remarks  of  Wheaton  are  peculiarly  ap- 
propriate and  just.  "The  duty,"  he  says,  "of  making  com- 
pensation to  individuals,  whose  private  property  is  sacrificed  to 
the  general  welfare,  is  inculcated  by  public  jurists,  as  correla- 
tive to  the  sovereign  right  of  alienating  those  things  which  are 
included  in  the  eminent  domain ;  but  this  duty  must  have  its 
limits.  No  government  can  be  supposed  to  be  able,  consistently 
with  the  welfare  of  the  whole  community,  to  assume  the  bur- 
den of  losses  produced  by  conquest,  or  the  violent  dismember- 
ment of  the  state.  Where,  then,  the  cession  of  territory  is  the 
result  of  coercion  and  conquest,  forming  a  case  of  imperious 
necessity  beyond  the  power  of  the  state  to  control,  it  does  not 
impose  any  obligation  upon  the  government  to  indemnify  those 
who  may  suifer  a  loss  of  property  by  the  cession." 

§  7.  Joint  treaty  of  peace  by  allies.  "  The  principal  party," 
says  Yattel,  "  in  whose  name  the  war  was  made,  cannot  justly 
make  peace,  without  including  his  allies."  The  same  author 
remarks,  that  states  which  have  been  associated  in  a  war,  or 
have  directly  taken  part  in  it,  are  respectively  to  make  their 
treaty  of  peace  each  for  itself;  but  that  the  alliance  obliges  them 
to  treat  in  concert. 


352        INTERNATIONAL  LAW  AND  LAWS  OF  WAB. 

§  8.  General  character  of  a  treaty  of  peace.  Every  treaty  of 
peace,  according  to  Vattel,  is  nothing  more  than  a  compromise. 
"Were  strict  and  rigid  justice  to  be  insisted  on,  it  would  be  im- 
possible ever  to  make  a  treaty  of  peace.  Not  only  the  character 
of  the  original  cause  of  the  war  would  have  to  be  determined, 
in  order  to  settle  the  question  as  to  which  of  the  belligerents 
was  in  the  wrong,  but  also  all  of  the  operations  of  the  war  it- 
self, and  the  expenses  incurred  and  damages  suffered  by  each 
party.  This  would  be  impossible ;  no  other  expedient,  there- 
fore, remains  but  to  compromise  all  the  claims  and  grievances 
on  both  sides,  by  a  convention  as  fair  and  equitable  as  circum- 
stances will  admit  of,  all  parties  agreeing  upon  what  terms  their 
several  pretensions  are  to  be  regarded  as  withdrawn  or  extin- 
guished. 

§  9.  It  implies  an  amnesty.  It  is  the  usual  practice  to  intro- 
duce a  leading  article  in  a  treaty  of  peace  declaring  an  amnesty 
or  a  perfect  oblivion  of  what  is  past ;  but  although  the  treaty 
should  be  silent  on  this  subject,  the  amnesty  is,  by  the  very  na- 
ture of  peace,  necessarily  implied  in  it.  A  treaty  of  peace  puts 
an  end  to  all  claims  for  indemnity  for  tortious  acts  committed 
during  the  war  under  the  authority  of  one  government  against 
the  citizens  or  subjects  of  another,  unless  they  are  specially  pro- 
vided for  in  its  stipulations. 

§  10.  New  grievances  from  same  cause.  But  while  a  treaty  of 
peace  extinguishes  the  original  subject  of  the  war,  it  does  not 
prevent  new  complaints  from  the  same  contested  right.  The 
grievances  which  originally  kindled  the  war  are  settled,  but  new 
grievances  arising  from  the  same  right  or  claim,  may  form  a  new 
cause  of  war,  equally  just  with  the  former. 

§  11.  Claims  unconnected  with  causes  of  the  war.  A  treaty  of 
peace  does  not  extinguish  claims  unconnected  with  the  cause  of 
the  war.  Debts,  existing  prior  to  the  war,  and  injuries  com- 
mitted prior  to  the  war,  but  which  made  no  part  of  the  reasons 
for  undertaking  it,  remain  entire,  and  the  remedies  are  revived. 

§  12.  Principle  of  uti  possidetes.    A  treaty  of  peace  leaves 


CH.  XXXIV.— TREATIES  OF  PEACE.  353 

every  thing  in  the  state  in  which  it  finds  it,  unless  there  be 
some  express  stipulations  to  the  contrary.  The  existing  state 
of  possession  is  maintained,  except  so  far  as  altered  by  the  terms 
of  the  treaty.  If  nothing  be  said  about  the  conquered  country 
or  places,  they  remain  with  the  possessor,  and  his  title  cannot 
afterward  be  called  in  question.  The  intervention  of  peace  covers 
all  defects  of  title,  and  vests  a  lawful  possession  in  the  purchaser, 
in  the  same  manner  as  it  quiets  the  title  of  the  hostile  captor 
himself.  This  general  rule  is  applied,  without  exception,  to 
personal  property  or  real,  and  is  called  the  principle  of  uti  pos- 
sidetis. 

§  13.  Treaty  of  peace  binds  the  whole  state.  Treaties  of  peace 
are  equally  valid,  whether  made  with  the  authorities  which  de- 
clared the  w^ar,  or  with  a  new  ruling  power  or  de  facto  govern- 
ment. Other  nations  have  no  right  to  interfere  with  the 
domestic  affairs  of  any  particular  nation,  or  to  judge  of  the  title 
of  the  party  in  possession  of  the  supreme  authority.  They  are 
to  look  only  to  the  fact  of  possession,  and  the  power  conferred 
upon  such  authorities,  by  the  then  existing  plan  of  government, 
or  fundamental  law.  Treaties  of  peace,  made  by  the  competent 
authorities  of  such  governments,  are  obligatory  upon  the  whole 
nation,  and,  consequently,  upon  all  succeeding  governments, 
whatever  may  be  their  character. 

§  14.  When  its  obligations  commence.  A  treaty  of  peace  binds 
the  contracting  parties  from  the  moment  of  its  conclusion,  unless 
otherwise  provided  in  the  treaty  itself  Hence,  all  hostilities 
are  to  cease  from  the  time  that  the  belligerent  powers  are  re- 
stored to  the  normal  relations  of  peace,  and  no  rights  of  war 
can  be  subsequently  acquired,  or,  (properly  speaking,)  exercised 
by  the  parties  to  the  treaty. 

§  15.  Criminal  responsibility  of  individuals.  Although  a  treaty 
of  peace  binds  the  governments  of  the  contracting  powers  from 
the  moment  of  its  conclusion,  (unless  otherwise  provided,)  so 
that  no  belligerent  right  can  afterward  be  lawfully  exercised,  it 
does  not  affect  the  citizens  or  subjects  of  such  powers  so  as  to 
30  «•  2  u 


354        INTERNATIONAL  LAW  AND  LAWS  OF   WAR. 

render  them  criminally  responsible,  and  liable  to  punishment  for 
acts  of  hostility,  till  they  have  actual  or  constructive  knowledge 
of  the  peace. 

§  16.  Civil  responsibility  for  damages.  But  while  all  agree  that 
individuals  are  not  ei^iminally  responsible  for  acts  of  hostility  com- 
mitted after  the  date  of  the  peace,  so  long  as  they  are  ignorant 
of  it,  there  seems  to  be  a  difference  of  opinion  among  publicists 
whether  they  are  responsible  civiliter  in  such  cases.  Grotius 
says  they  are  not  liable  to  answer  in  damages,  but  it  is  the  duty 
of  the  government  to  restore  what  has  been  captured  and  not 
destroyed.  "  But  the  better  opinion  seems  to  be,''  says  Whea- 
ton,  "  that  wherever  a  capture  takes  place  at  sea,  after  the  sig- 
nature of  the  treaty  of  peace,  mere  ignorance  of  the  fact  will 
not  protect  the  captor  from  civil  responsibility  in  damages ;  and 
that  if  he  acted  in  good  faith,  his  own  government  must  protect 
him  and  save  him  harmless." 

§  17.  Constructive  and  actual  knowledge  of  peace.  When  the 
treaty  of  peace  contains  an  express  stipulation  that  hostilities 
are  to  cease  in  a  given  place  at  a  certain  time,  and  a  capture  is 
made  previous  to  the  expiration  of  the  period  limited,  but  with 
a  knowledge  of  the  peace  on  the  part  of  the  captor,  it  has  been 
a  question  among  writers  on  public  law  whether  the  captured 
property  should  be  restored.  "  The  better  and  the  more  rea- 
sonable opinion  is,''  says  Kent,  "that  the  capture  would  be 
null  though  made  before  the  day  limited,  provided  the  captor 
was  previously  informed  of  the  peace;  for,  as  Emerigon  ob- 
serves, since  constructive  knowledge  of  the  peace,  after  the  time 
limited  in  different  parts  of  the  world,  renders  the  capture  void, 
much  more  ought  actual  knowledge  of  the  peace  to  produce  that 
effect."  Wheaton  coincides  in  this  view,  but  remarks  that  it 
may  be  questionable  whether  anything  short  of  an  official  noti- 
fication from  his  own  government  would  be  sufficient,  in  such  a 
case,  to  affect  the  captor  with  the  legal  consequence  of  actual 
knowledge. 

§  18.  Recapture  after  treaty  of  peace.    Another  question  has 


CH.  XXXIV.— TREATIES  OF  PEACE.  355 

arisen  with  respect  to  the  validity  of  a  recapture  of  a  prize, 
after  peace,  but  without  a  knowledge  of  it,  and  before  the  prize 
had  been  carried  infra  presidia,  and  condemned.  In  the  case 
of  a  British  vessel  captured  by  an  American  privateer  during 
the  war,  and  recaptured  while  at  sea  by  a  British  ship  of  war, 
after  peace  by  the  treaty  of  Ghent  in  1814,  but  in  ignorance  of 
it,  it  was  decided  in  a  British  vice-admiralty  court,  that  the 
possession  of  the  vessel  by  the  American  privateer  was  a  lawful 
possession,  and  that  the  British  cruiser  could  not,  after  the  peace, 
lawfully  use  force  to  divest  this  lawful  possession.  The  resto- 
ration of  peace  put  an  end,  for  the  time  limited,  to  all  force, 
and  then  the  general  principle  applied,  that  things  acquired  in 
war  remain,  as  to  title  and  possession,  precisely  as  they  stood 
when  the  peace  took  place. 

§  19.  In  what  condition  things  are  to  be  restored.  Things 
stipulated  to  be  restored  by  the  treaty  are  to  be  restored  in  the 
condition  in  which  the  treaty  found  them,  unless  there  be  an 
express  stipulation  to  the  contrary.  A  fortress  or  town  is,  there- 
fore, to  be  restored  as  it  was  when  taken,  so  far  as  it  still  re- 
mains in  that  condition  when  the  peace  is  concluded.  There  is 
no  obligation  to  repair  a  dismantled  fortress,  nor  to  restore  the 
former  condition  of  a  territory  which  has  been  ravaged  by  the 
operations  of  war.  On  the  other  hand,  to  dismantle  a  fortifica- 
tion or  to  lay  waste  a  country,  after  the  conclusion  of  peace, 
would  be  an  act  of  perfidy.  A  conqueror  may,  however,  de- 
molish new  works  constructed  by  himself,  but  not  repairs  made 
by  him  in  old  works  which  he  himself  had  injured  during  the 
war. 

§  20.  Unpaid  military  contributions.  The  principle  of  uti  pos- 
sidetis being  the  basis  of  every  treaty  of  peace,  unless  otherwise 
specially  provided  in  the  treaty  itself,  it  follows  that  the  con- 
queror (the  treaty  being  silent  on  this  point,)  is  entitled  to  all 
the  contributions  which  he  has  collected,  by  the  right  of  mili- 
tary occupation,  of  the  belligerent  territory  now  surrendered ; 
but  not  to  those  which  he  has  levied  but  failed  to  collect.     His 


356        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

rights  over  the  inhabitants  of  such  territory  are  military  rights, 
and,  consequently,  terminate  with  the  right  of  possession,  i.  e., 
with  the  treaty  of  peace  which  restores  the  conquest. 

§  21.  Breach  of  a  treaty  of  peace.  "  The  breach  of  a  treaty 
of  peace,"  says  Vattel,  "  consists  in  violating  the  engagements 
annexed  to  it,  either  by  doing  what  it  prohibits,  or  by  not  doing 
what  it  prescribes.  Now,  the  engagements  contracted  by  treaty 
may  be  violated  in  three  different  ways, — by  a  conduct  that  is 
repugnant  to  the  nature  and  essence  of  every  treaty  of  peace  in 
general, — by  proceedings  which  are  incompatible  with  the  par- 
ticular nature  of  the  treaty  in  question, — or,  finally,  by  the 
violation  of  any  article  expressly  contained  in  it." 

§  22.  Delays  in  executing  it.  Affected  delays  in  performing 
the  conditions  of  a  treaty  of  peace,  are,  says  Yattel,  equivalent 
to  an  express  denial,  and  differ  from  it  only  by  the  artifice  with 
which  he,  who  practices  them,  seeks  to  palliate  his  want  of  faith ; 
he  adds  fraud  to  perfidy,  and  actually  violates  the  article  which 
he  should  fulfill.  But,  if  a  real  impediment  stands  in  the  way, 
time  must  be  allowed,  for  no  one  is  bound  to  perform  impossi- 
bilities. If  the  obstacle  be  utterly  insurmountable,  the  other 
party  should  accept  of  an  indemnification,  if  the  case  will  admit 
of  it,  and  the  indemnification  be  practicable.  But  if  no  equi- 
valent can  be  offered,  the  intervening  impossibility  undoubtedly 
cancels  the  particular  obligation. 

§  23.  War  for  new  cause  or  for  breach  of  treaty  of  peace. 
"  There  is,"  says  Kent,  "  a  very  material  and  important  distinc- 
tion made  by  the  writers  on  public  law,  between  a  new  war  for 
some  new  cause,  and  a  breach  of  a  treaty  of  pe^e.  In  the  former 
case,  the  rights  acquired  by  the  treaty  subsist,  notwithstanding 
the  new  war ;  but  in  the  latter  case,  they  are  annulled  by  the 
breach  of  the  treaty  of  peace,  on  which  they  were  founded.  A 
new  war  may  interrupt  the  exercise  of  the  rights  acquired  by 
the  former  treaty,  and,  like  other  rights,  they  may  be  wrested 
from  the  party  by  the  force  of  arms.  But  then  they  become 
newly  acquired  rights,  and  partake  of  the  operation  and  result 


CH.  XXXIV.— TREATIES  OF  PEACE.  357 

of  the  new  war.  To  recommence  a  war  by  breach  of  the  articles 
of  a  treaty  of  peace,  is  deemed  much  more  odious  than  to  pro- 
voke a  war  by  some  new  demand  and  aggression ;  for  the  latter 
is  simply  injustice,  but,  in  the  former  case,  the  party  is  guilty 
both  of  perfidy  and  injustice." 


CHAPTER  XXXY. 

RIGHTS  OF  POSTLIMINY  AND    RECAPTURE. 

§  1.  Right  of  postliminy  defined.  The  jm  postliminii  was  a 
fiction  of  the  Roman  law  by  which  persons,  and,  in  some  cases, 
things,  taken  by  an  enemy  were  restored  to  their  original  legal 
status  immediately  on  coming  under  the  power  of  tlie  nation  to 
which  they  formerly  belonged.  This  law  among  the  Romans 
applied  almost  exclusively  to  questions  of  private  rights ;  but 
its  principles  have,  in  modern  times,  been  applied,  with  certain 
modifications,  to  the  international  relations  of  states  as  well  as 
to  the  rights  of  property  of  individuals  of  the  same  or  of  dif- 
ferent states. 

§  2.  Postliminy  with  regard  to  personal  status  and  rights.  In 
regard  to  personal  status,  the  jus  postliminii  of  the  Romans  has 
but  few  applications  in  modern  times,  at  least  between  Chris- 
tian nations,  for  the  reason,  that  prisoners  of  war  are  no  longer 
made  slaves,  nor  is  any  ransom,  required  or  paid  for  their  re- 
lease. And  although  slavery  was  recognized  by  the  Roman 
municipal  law,  the  Digest  contained  the  dictum,  that  "  so  far  as 
the  law  of  nature  is  concerned,  all  men  are  equal."  The  law 
of  nature  and  of  nations,  or  what  we  now  call  international 
law,  does  not  recognize  slavery,  although  it  does  not  interfere 
with  its  existence  under  local  and  municipal  law.  Hence  slaves  or 
serfs  escaping  from  one  country  into  another,  have,  for  centuries 
past,  been  held  to  be  free  by  the  judicial  decisions  of  European 
countries,  and  the  same  principle  has  been  applied  in  the  United 
States  when  not  overruled  by  constitutional  provisions.  And 
hence  in  time  of  war  a  slave  escaping  from  one  belligerent  to 

358 


CH.  XXXV.— POSTLIMINY  AND  RECAPTURE.         359 

another,  even  though  the  latter  be  a  slave-holding  power,  is  free, 
and  being  thus  placed  under  the  shield  of  the  law  of  nations, 
the  former  owner  or  state  can  have  by  the  law  of  postliminy  no 
belligerent  lien  or  claim  of  service. 

§  3.  Postliminy  in  regard  to  things.  With  respect  to  things 
taken  by  the  enemy,  the  Roman  law  considered  them  as  with- 
drawn from  the  category  of  legal  relations  during  the  period  of 
the  enetny's  possession  of  them.  If  retaken  by  their  former 
owner,  they  become  his  by  the  recapture ;  but,  if  retaken  by  the 
state  they  were  considered  as  booty,  or  prize  of  war,  the  original 
right  of  property  being  extinguished  by  the  intervening  hostile 
possession.  But,  certain  things  were  excepted  from  this  rule,  as 
real  property,  horses,  vessels  used  for  purposes  of  war,  etc. ;  and 
to  these  the  jus  postliminii  was  accorded.  This  general  maxim 
of  the  Roman  law,  although  not  in  all  its  details,  is  engrafted 
into  modern  international  jurisprudence,  and  is  fully  recognized 
as  an  incident  to  the  state  of  war,  and  contributes  essentially  to 
mitigate  its  calamities. 

§  4.  Right  of  postliminy  belongs  exclusively  to  a  state  of  war. 
The  right  of  postliminy  belongs  exclusively  to  a  state  of  war, 
and  no  longer  exists  after  the  conclusion  of  a  treaty  of  peace. 
The  intervention  of  peace  cures  all  defects  of  title  to  property 
of  every  kind,  acquired  in  war,  and  such  title  cannot  be  sub- 
sequently defeated  in  favor  of  the  original  owner,  not  even  in 
the  hands  of  a  neutral  possessor,  who  himself  becomes  an 
enemy.  Such  property  may  be  liable  to  capture  as  booty,  or 
prize  of  war,  the  same  as  any  other  property  of  that  neutral, 
now  an  enemy,  but  it  is  not  aifected  by  the  right  of  postliminy. 

§  5.  Postliminy  in  regard  to  allies.  It  is  a  general  rule  of  in- 
ternational law,  that  allies  in  war  make  but  one  party  with  the 
principal;  the  cause  being  common,  the  rights  and  obligations 
are  the  same.  It  follows,  therefore,  that  when  persons  and 
things  belonging  to  one  of  the  allies,  which  have  been  taken  by 
the  enemy,  fall  into  the  hands  of  another  ally,  they  are  subject 
to  the  right  of  postliminy,  and  must  be  restored  to  their  former 


860        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

condition.  The  recapture  by  an  ally,  is  regarded  the  same  as  a 
recapture  by  the  principal,  and  vice  versa.  So,  also,  with  respect 
to  territory,  persons  and  things  brought  within  the  territory  of 
one  ally,  are  affected  by  the  rights  of  postliminy  precisely  the 
same  as  if  brought  within  the  territory  of  their  own  sovereign. 

§  6.  In  a  neutral  territory.  The  right  of  postliminy,  with  re- 
spect to  things,  does  not  take  effect  in  neutral  countries,  because 
the  neutral  is  bound  to  consider  every  acquisition  made  by  either 
party  as  a  lawful  acquisition,  unless  the  capture  itself  is  an  in- 
fringement of  his  own  neutral  jurisdiction  or  rights.  If  one 
party  were  allowed  in  a  neutral  territory  to  enjoy  the  right  of 
claiming  goods  taken  by  the  other,  it  would  be  a  departure 
from  the  duty  of  neutrality.  Neutrals  are  bound  to  take  notice 
of  the  military  rights  which  possession  gives,  and  which  is  the 
only  evidence  of  right  acquired  by  military  force,  as  contradis- 
tinguished from  civil  rights  and  titles.  The  fact  must  be  taken 
for  the  law.  But  with  respect  to  persons,  it  takes  effect,  not 
only  in  the  territory  of  the  nation  to  which  such  persons  belong, 
and  in  that  of  his  allies,  but  also  in  a  neutral  country ;  so  that 
if  a  belligerent  brings  his  prisoners  into  a  neutral  territor}^  he 
loses  all  control  of  them.  So,  if  prisoners  escape  from  their 
captors,  and  reach  a  neutral  territory,  they  cannot  be  pursued 
and  seized  in  such  territory,  and  consequently,  are  restored  to 
their  former  condition. 

§  7.  Upon  movables  on  land.  Naturally,  property  of  all  kinds 
is  recoverable  by  the  right  of  postliminy,  and  there  is  no  in- 
trinsic reason  why  movables  should  be  excepted  from  the  rule. 
Such,  indeed,  was  the  ancient  practice,  and  by  the  jiLS  postliminii 
of  the  Romans,  certain  articles,  on  being  recovered  from  the 
enemy,  w^ere  required  to  be  restored  to  their  former  owners. 
But  the  difficulty  of  recognizing  things  of  this  nature,  with  any 
degree  of  certainty,  and  the  endless  disputes  which  would 
spring  from  a  revindication  of  them,  have  introduced  a  contrary 
practice  in  modern  times ;  and  the  title  of  the  former  owner  to 


CH.  XXXV.— POSTLIMINY  AND  RECAPTURE.  361 

all  booty  is  considered  as  completely  divested  by  a  firm  posses- 
sion of  the  captor  of  twenty-four  hours. 

§  8.  Upon  real  property.  Real  property  is  easily  identified, 
and  is  not  of  a  transitory  nature ;  it  is,  therefore,  considered  to 
be  completely  within  the  right  of  postliminy.  The  rule,  how- 
ever, cannot  be  frequently  applied  to  the  case  of  mere  private 
property,  which,  by  the  general  rule  of  modern  nations,  is  ex- 
empt from  confiscation.  There  are  some  exceptions  to  this 
general  rule,  and  wherever  private  real  property  has  been  con- 
fiscated by  the  enemy,  and  again  comes  into  the  possession  of 
the  nation  to  which  the  individual  owner  belongs,  it  is  subject 
to  the  right  of  postliminy. 

§  9.  Upon  towns  and  provinces.  Towns,  provinces,  and  terri- 
tories, which  are  retaken  from  the  conqueror  during  the  war,  or 
which  are  restored  to  their  former  sovereign  by  the  treaty  of 
peace,  are  entitled  to  the  right  of  postliminy,  and  the  original 
sovereign  owner  on  recovering  his  dominion  over  them,  whether 
by  force  of  arms  or  by  treaty,  is  bound  to  restore  them  to  their 
former  state.  In  other  words,  he  acquires  no  new  rights  over 
them  either  by  the  act  of  recapture  or  of  restoration.  The  con- 
queror loses  the  rights  which  he  had  acquired  by  force  of  arms ; 
but  those  rights  are  not  transferred  to  the  former  sovereign,  Avho 
resumes  his  dominion  over  them  precisely  the  same  as  though 
the  war  had  never  occurred.  He  rules,  not  by  a  newly  acquired 
title  which  relates  back  to  any  former  period,  but  by  his  ancient 
title,  which,  in  contemplation  of  law,  has  never  been  divested. 

§  10.  If  a  state  be  entirely  subjugated.  A  state  is  sometimes 
entirely  subjugated  and  its  personality  extinguished  by  compul- 
sory incorporation  into  another  sovereignty.  As  the  towns, 
provinces  and  territories  of  which  it  was  composed  now  become 
subordinate  portions  of  another  society,  their  relations  to  each 
other  and  to  the  new  state  result  from  the  will  of  the  new 
sovereign. 

§  11.  If  the  subjugated  state  regain  its  own  independence.  If, 
by  a  subsequent  revolution,  the  extinguished  state  resumes  its 
:u  2  v 


362        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

independence,  and  again  becomes  a  distinct  and  substantive 
body,  its  constituent  parts  may  resume  their  former  relations,  or 
assume  new  positions  and  rights,  according  to  the  character  of 
the  society  which  is  restored,  and  the  constitution  or  govern- 
ment which  it  adopts.  This  is  a  question  of  local  public  law, 
rather  than  of  international  jurisprudence. 

§  12.  K  it  be  released  by  a  friend  or  ally.  But  if  the  subjugated 
state  is  delivered  by  the  assistance  of  another,  the  question  of 
postliminy  may  arise  between  the  restored  state  and  its  deliverer. 
There  are  two  cases  to  be  considered :  first,  where  the  deliver- 
ance is  effected  by  an  ally,  and  second,  where  it  is  effected  by  a 
friendly  power  unallied.  In  either  case,  the  state  so  delivered, 
is  entitled  to  the  right  of  postliminy.  If  the  deliverance  be 
effected  by  an  ally,  the  duty  of  restoration  i9  strict  and  precise, 
for  an  ally  can  claim  no  right  of  war  against  its  co-ally.  If  the 
deliverance  be  effected  by  a  state  unallied,  but  not  hostile,  the 
reestablishment  of  the  rescued  nation  in  its  former  rights  is 
certainly  the  moral  duty  of  the  deliverer.  He  can  claim  no 
rights  of  conquest  against  the  friendly  state  which  he  rescues 
from  the  hands  of  the  conqueror.  How  much  stronger,  then, 
is  the  duty  of  restoration  where  the  deliverance  is  effected  with 
the  concurrence  and  assistance  of  the  subjugated  people,  and 
under  the  expectation  on  their  part  of  recovering  their  ancient 
rights  and  privileges  !  A  denial  of  the  right  of  postliminy,  in 
such  a  case,  would  be  contrary  to  the  law  of  nations  and  a 
breach  of  public  morality. 

§  13.  Case  of  Genoa  in  1814.  The  history  of  Genoa  furnishes 
an  illustration  of  this  principle.  The  ancient  republic  of  Ge- 
noa had  been  subverted,  in  consequence  of  the  French  invasion 
and  conquest  of  Italy,  and  was  annexed  to  the  French  empire 
in  1805.  In  1814,  the  city  of  Genoa  was  surrendered  to  the 
British  troops  under  the  command  of  Lord  Bentinck,  who  is- 
sued a  proclamation  that  the  Genoese  state  resumed  the  privilege 
of  its  original  constitution.  Nevertheless,  by  the  second  article 
of  the  treaty  of  Paris,  of  the  30th  of  May,  1814,  the  states  of 


CH.  XXXV.— POSTLIMINY  AND  RECAPTURE.  363 

Genoa  were  ceded  to  the  king  of  Sardinia.  The  provisional 
government  of  Genoa  remonstrated  against  this  cession,  and  ap- 
pealed to  the  guarantee  of  its  independence  contained  in  the 
treaty  of  Aix-la-Chapelle,  1745.  The  conduct  of  England  was 
severely  censured  in  parliament  at  the  time,  and  has  since  been 
condemned  by  publicists  generally. 

§  14.  Application  of  postliminy  to  maritime  captures.  There 
is  a  manifest  difficulty  in  applying  the  right  of  postliminy  to 
maritime  recaptures,  on  account  of  the  uncertainty  of  the  time 
when  the  title  of  the  original  proprietor  is  completely  divested. 
If  all  nations  had  adopted  the  principle,  that  condemnation,  by 
a  competent  court  of  prize,  was  necessary,  in  all  cases,  to  effect 
a  change  of  ownership,  the  rules  of  postliminy  applicable  to 
prizes,  would  be  the  same  in  all  countries ;  but  as  this  principle 
has  not  been  universally  adopted,  there  is  not,  in  practice,  any 
well  established  rule  of  maritime  recapture. 

§  15.  Regulated  in  part  by  treaty  stipulations.  This  difficulty 
has  been  obviated  in  part  by  treaty  stipulations.  But  as  these 
stipulations  bind  only  those  who  have  entered  into  them,  and 
cannot  affect  the  rights  of  third  parties,  it  becomes  necessary  as 
towards  them  to  adopt  some  fixed  rule.  No  difficulty  can  oc- 
cur in  regard  to  those  who  admit  the  necessity  of  condemnation 
by  a  prize  court. 

§  16.  Rule  of  reciprocity.  To  others  it  is  usual  to  apply  the 
rule  of  reciprocity.  Sir  William  Scott  considered  this  the  most 
liberal  and  rational  rule  that  could  be  applied.  "  To  the  cap- 
tured," he  said,  "it  presents  his  own  consent,  bound  up  in  the 
legislative  wisdom  of  his  own  country ;  and  to  the  recaptor  it 
cannot  be  considered  as  injurious ;  where  the  rule  of  the  recap- 
tured would  condemn,  whilst  the  rule  of  the  recaptor  prevailing 
among  his  own  countrymen,  would  restore,  it  brings  an  obvious 
advantage ;  and  even  in  case  of  immediate  restitution,  under  the 
rules  of  the  recaptured,  the  recapturing  country  would  rest  secure 
in  the  reliance  of  receiving  reciprocal  justice  in  its  turn." 

§  17.  Military  and  civil  salvage.     There  is  an  obvious  distinc- 


364        INTERNATIONAL    LAW  AND  LAWS  OF  WAR. 

tlon  between  military  and  dvU  salvage,  the  former  being  allowed 
for  rescuing  vessels  or  goods  from  an  enemy,  and  the  latter  for 
assistance  rendered  to  a  vessel  or  its  cargo  derelict  at  sea.  Thus, 
if  a  vessel  be  captured  going  in  distress  into  an  enemy's  port, 
and  is  thereby  saved,  it  is  merely  a  case  of  civil  and  not  of 
military  salvage.  The  same  salvors,  however,  may,  in  some 
cases,  be  entitled  to  both  these  kinds  of  salvage ;  thus,  where, 
upon  a  recapture,  the  parties  have  entitled  themselves  to  a  mili- 
tary salvage  under  the  prize  law,  the  court  may  also  award  tliem, 
in  addition,  a  civil  salvage,  if  they  have  subsequently  rendered 
extraordinary  services  in  rescuing  the  vessel  in  distress  from  the 
perils  of  the  sea. 

§  18.  On  neutral  property  not  subject  to  condemnation.  Neu- 
tral property  recaptured  from  the  enemy,  if  not  subject  to  con- 
demnation by  the  rules  of  international  law,  is  not  subject  to 
pay  salvage  to  the  recaptor.  This  rule  is  founded  upon  the  sup- 
position that  justice  would  have  been  done  if  the  vessel  had 
been  carried  into  the  enemy's  ])ort,  and  that  if  injury  had  been 
sustained  by  the  act  of  capture,  it  would  have  been  redressed 
by  the  tribunal  of  the  country  to  whose  cognizance  the  case 
would  have  been  regularly  submitted. 

§  19.  Where  restoration  is  not  of  strict  right.  The  allotment 
of  salvage,  where  the  recaptured  property  is  claimed  by  subjects 
of  the  same  state,  is  properly  regulated  by  municipal  law;  but 
where  it  is  claimed  by  subjects  of  allies  or  alien  friends,  the  al- 
lotment of  military  salvage  is  properly  a  question  of  inter- 
national law ;  so,  also,  of  civil  salvage,  where  the  quantum  me- 
ruit is  the  only  rule  for  apportioning  the  remuneration.  But, 
as  already  remarked,  there  being  no  well-established  rule  of 
international  law  universally  acknowledged,  with  respect  to  the 
legal  status  of  captured  property,  between  the  time  of  pernoc- 
tation,  or  twenty-four  hours  possession,  and  the  condemnation 
by  a  competent  court  of  prize,  restitution,  in  case  of  recapture 
between  these  periods,  is  not  regarded  as  a  matter  of  strict  right, 
but,  in  a  measure,  one  of  favor  and  relaxation ;  and  the  bellig- 


CH.  XXXV.— POSTLIMINY  AND  RECAPTURE.  365 

erent  recaptor  certainly  is  justifiable  in  annexing  conditions  to 
his  liberality. 

§  20.  Where  of  strict  right.  But  where  the  restitution  is  re- 
garded as  a  positive  obligation  on  the  part  of  the  recaptor,  and 
as  a  right  which  may  be  demanded  by  the  owner  of  the  recap- 
tured property,  it  seems  unreasonable  and  contrary  to  the  prin- 
ciples of  postliminy,  that  any  heavy  salvage  should  be  allowed. 
Where,  however,  a  positive  benefit  has  been  conferred,  it  is 
proper  that  the  recaptor  should  be  rewarded  for  his  risk  and 
trouble. 

§  21.  Recapture  by  convoying  ships.  If  a  convoying  ship  re- 
capturas  one  of  the  convoy,  which  has  been  previously  captured 
by  the  enemy,  the  recaptors  are  entitled  to  salvage ;  but  a  mere 
rescue  of  a  ship  engaged  in  the  same  common  enterprise,  gives 
no  right  to  salvage. 

§  22.  Military  salvage  not  allowed  without  actual  rescue  from 
the  enemy.  Military  salvage  will  not  be  allowed  in  any  case 
where  the  property  has  not  been  actually  rescued  from  the  en- 
emy. It  is  not  necessary  that  the  enemy  should  have  actual 
possession ;  it  is  sufficient  if  the  property  is  completely  under 
his  dominion :  nor  is  it  necessary  that  the  recaptors  should  have 
actual  possession ;  it  is  sufficient  if  the  prize  be  actually  res- 
cued from  the  grasp  of  the  hostile  captor.  Where  a  hostile  ship 
is  captured,  and  afterwards  recaptured  by  the  enemy,  and  again 
recaptured  from  the  enemy,  the  original  captors  are  entitled  to 
restitution  on  paying  salvage,  but  the  last  captors  are  entitled 
to  the  whole  rights  of  prize,  for  by  the  first  recapture,  the  right 
of  the  original  captors  is  entirely  divested.  Where  the  original 
captors  have  abandoned  their  prize,  and  it  is  subsequently  cap- 
tured by  other  parties,  the  latter  are  solely  entitled  to  the  pro- 
perty. 

§  23.  If  original  capture  be  unlawful  If  the  original  capture 
was  unlawful,  the  recaptor,  says  Emerigon,  acquires  no  property 
in  the  recapture.  Thus,  the  French  bark  Yictoire,  chased  by 
an  English  privateer,  took  refuge  under  the  castle  of  the  island 

31  « 


366        INTERNATIONAL   LAW  AND  LAWS  OF   WAR. 

of  Majorca,  and  was  taken  by  the  privateer  while  at  anchor 
within  pistol  shot  of  the  castle.  Some  days  after,  the  bark  was 
recaptured  by  another  French  vessel.  The  original  capture  was 
held  to  have  been  unlawful  and  void,  for  having  been  made  in 
neutral  territory,  and,  consequently,  in  violation  of  the  law  of 
nations. 

§  24.  Recapture  of  ransom-bill.  The  recapture  of  a  ransom- 
bill,  is  neither  the  recapture  of  the  vessel  ransomed,  nor  of  the 
ransom  itself.  But  if  the  ransom-bill  be  accompanied  by  a  bill 
of  exchange  drawn  by  the  captain  of  the  ransomed  vessel  and 
negotiated  in  good  faith,  it  must  be  paid  by  the  owners  of  the 
ransomed  vessel. 

§  25.  A  vessel  recaptured  by  her  master  and  crew.  Emerigon 
held  that,  it  being  the  duty  of  the  captain  and  crew  of  a  cap- 
tured vessel  to  retake  her,  when  possible,  they  cannot  claim  her 
by  the  right  of  recovery  when  so  retaken.  By  throwing  off  the 
yoke  of  the  captor,  they  have  merely  rendered  themselves 
master  of  their  own  vessel,  and  reentered  upon  their  former 
rights,  but  have  acquired  no  new  rights  of  property  in  the  re- 
covered vessel  or  cargo.  But,  in  a  case  decided  in  the  British 
court  of  admiralty,  large  salvage  was  decreed  for  such  recap- 
ture. The  circumstances,  however,  were  somewhat  peculiar,  and 
perhaps  formed  an  exception  to  the  general  rule. 

§  26.  Recapture  from  pirates.  Captures  by  pirates  being  un- 
lawful, no  title  can  properly  vest  either  in  the  captors  or  their 
vendees,  and,  in  case  of  recapture,  the  original  owner  is,  on 
principle,  entitled  to  complete  restitution.  But  on  account  of 
the  risk  incurred  and  the  benefit  conferred,  courts  have  usually 
allowed  a  pretty  large  salvage  to  the  recaptors,  where  not  regu- 
lated by  municipal  law.  Some  states  have  left  this  matter  of 
salvage  for  rescue  from  pirates  discretionary  with  the  courts, 
while  others  have  regulated  it  by  law  or  ordinance. 

§  27.  Joint  recapture.  The  rules  of  joint  capture,  given  in  a 
preceding  chapter,  are  equally  applicable  to  joint  recapture.  It 
is  held  in  England,  that  although  the  prize  act  only  mentions 


CH.  XXXV.— POSTLIMINY  AND  RECAPTURE.  367 

recaptures  by  ships  and  boats,  it  does  not  intend  to  exclude 
those  made  by  the  assistance  of  land  forces.  Where  an  island 
was  taken  by  a  joint  naval  and  military  force,  the  ships  recap- 
tured were  held  liable  to  be  adjudged  under  this  act,  and  to  be 
condemned  to  the  captors,  or  to  be  restored  on  payment  of  sal- 
vage, as  the  case  might  be.  Moreover,  a  land  force  may  be 
entitled  to  sustain  a  claim  of  salvage  for  recapture  of  vessels  in 
a  maritime  port,  without  the  cooperation  of  a  naval  force,  where 
the  recapture  is  a  necessary  and  immediate  result  of  a  military 
occupation  directed  to  the  capture  of  the  place  within  whose 
port  the  property  is  lying. 


CHAPTER    XXXyi. 

THE  OBSERVANCE  AND  INTERPRETATION  OF  TREATIES. 

§  1.  Violation  of  the  faith  of  treaties.  Vattel  says  that  na- 
tions may  combine  together  to  punish  a  state  which  violates 
its  treaty  obligations.  The  doctrine  of  modern  publicists  is 
that  only  the  parties  who  suffer  by  such  violations  are  justified 
in  making  war  to  redress  the  injury. 

§  2.  Conditions  to  make  a  treaty  binding.  Martens  says,  that 
in  order  to  make  a  treaty  obligatory,  the  following  five  things 
are  necessarily  supposed :  1st,  That  the  parties  have  power  to 
contract.  In  other  words,  that  the  person  or  authority  making 
the  treaty,  or  ratifying  it,  had  full  power  for  that  purpose.  2d, 
That  they  have  consented.  The  form  of  such  consent  is  entirely 
unimportant,  provided  it  is  fully  and  clearly  declared.  3d, 
That  they  have  consented  freely.  The  consent  must  have  been 
a  voluntary  act  of  the  contracting  party.  The  plea  of /ear, 
however,  cannot  be  opposed  to  the  validity  of  treaties  between 
nation  and  nation,  except,  at  most,  in  cases  where  the  injustice 
of  the  violence  employed  is  so  manifest  as  not  to  leave  the  least 
doubt.  4th,  That  the  consent  is  mutual.  6th,  That  the  execu- 
tion is  possible. 

§  3.  Use  of  an  oath  in  treaties.  The  use  of  an  oath,  in  trea- 
ties, does  not  constitute  a  new  obligation,  nor  does  it  strengthen 
the  obligation  already  contracted.  The  most  that  could  ever  be 
said  of  it  was,  that  it  gave  some  additional  solemnity  to  the  act, 
and  imposed  a  personal  obligation  upon  the  sovereign  who  took 
the  oath,  or  gave  commission  to  another  to  swear  for  him.  It 
could  neither  give  validity  to  an  invalid  treaty,  nor  a  preemi- 

368 


CH.  XXXVL— INTERPRETATION  OF  TREATIES.         369 

nence  to  one  treaty  above  another.  The  custom,  once  generally 
received,  of  swearing  to  treaties,  has  now  entirely  passed  away. 
The  most  modern  example  of  the  use  of  the  oath,  was  in  the 
alliance  between  France  and  Switzerland,  in  1777. 

§  4.  Use  of  cLSseverations.  Asseverations  are  sometimes  used  in 
engagements  or  treaties  between  sovereigns ;  such  as,  we  promise 
in  the  most  sacred  mannei' ;  with  good  faith  ;  solemnly  ;  irrevocably; 
and  pledge  our  royal  words,  etc.  These  are  now  regarded  as  mere 
forms  of  expression,  showing  that  the  parties  entered  into  the 
engagement  with  reflection,  deliberation,  and  a  full  knowledge 
of  what  they  were  doing.  The  words  added  nothing  to  the 
obligation  of  the  treaty.  But  the  formal  and  deliberate  manner 
in  which  treaties  are  now  made  and  ratified,  render  such  forms 
of  expression  entirely  superfluous. 

§  5.  Attempts  of  the  popes  to  animl  the  obligations  of  treaties. 
The  popes  at  one  time  claimed  the  authority  to  absolve  sove- 
reigns from  their  engagements  and  to  annul  the  obligations  of 
treaties,  under  whatsoever  solemnities  they  might  be  contracted. 
Vattel  mentions  a  number  of  instances  where,  he  says,  they 
have  undertaken  to  break  the  treaties  of  sovereigns,  "  to  unloose 
a  contracting  power  from  his  engagements,  and  to  absolve  him 
from  the  oaths  by  which  he  had  confirmed  them.^'  But  no  such 
assumption  of  power  would  be  recognized  in  the  present  age. 

§  6.  Guarantees  and  sureties.  To  secure  the  fulfillment  of 
treaties,  guarantees  and  sureties  have  sometimes  been  given  by 
the  contracting  parties.  We  have  discussed  these  in  a  former 
chapter. 

§  7.  Dissolution  and  termination  of  treaties.  Treaties  may  be 
dissolved,  or  their  stipulations  may  terminate  in  various  ways. 
Some  expire  by  their  own  limitation,  while  others  are  termi- 
nated by  war  between  the  contracting  parties ;  some  are  perma- 
nent in  their  nature,  and  although  their  operation  may  be  sus- 
pended during  war,  they  revive  on  the  return  of  peace,  unless 
expressly  abrogated  or  altered  by  a  new  compact ;  while  others 
again  have  reference  to  both  peace  and  war,  or  exclusively  to  a 

2  w 


370        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

state  of  war,  and  consequently  continue  in  force,  notwithstand- 
ing an  entire  interruption  of  pacific  relations  between  the  con- 
tracting parties.  Thus,  treatiies  made  for  a  fixed  period  of  time, 
or  for  a  specified  object,  expire  on  the  termination  of  the  time 
designated,  or  the  accomplishment  of  the  object  specified. 

§  8.  Effect  of  loss  of  sovereignty,  etc.  But  the  obligations  of 
treaties,  even  where  some  of  their  stipulations  are,  in  their 
terms,  perpetual,  expire  in  case  either  of  the  contracting  parties 
loses  its  existence  as  an  independent  state,  or  in  case  its  internal 
constitution  is  so  changed  as  to  render  the  treaty  inapplicable  to 
the  new  condition  of  things. 

§  9.  Debts  and  obligations  previously  contracted.  A  distinc- 
tion must  be  made  between  obligations  and  debts  already  in- 
curred, and  those  which  would  be  incurred  if  the  treaty  had  not 
been  terminated  before  its  time  by  such  a  change  in  the  circum- 
stances of  one  of  the  contracting  parties  as  to  render  it  inappli- 
cable. A  change  of  condition,  as  the  partial  loss  of  its  sove- 
reignty and  independence, — will  not,  in  general,  release  such  a 
state  from  obligations  already  incurred,  although  it  may  prevent 
any  new  ones  from  occurring  out  of  the  same  instrument,  the 
stipulations  of  which  are  no  longer  applicable  or  obligatory. 

§  10.  Kent  on  interpretation.  "  Treaties  of  every  kind,"  says 
Kent,  "  are  to  receive  a  fair  and  liberal  interpretation,  accord- 
ing to  the  intention  of  the  contracting  parties,  and  to  be  kept 
with  the  most  scrupulous  good  faith.  Their  meaning  is  to  be 
ascertained  by  the  same  rules  of  construction  and  course  of  rea- 
soning which  we  apply  to  the  interpretation  of  private  con- 
tracts." 

§  11.  Wheaton  on  technical  rules.  The  same  general  rule  is 
laid  down  by  Wheaton,  but  he  adds :  "  Such  is  the  inevitable 
imperfection  and  ambiguity  of  all  human  language,  that  the 
mere  words  alone  of  any  writing,  literally  expounded,  will  go  a 
very  little  way  toward  explaining  the  meaning.  Certain  tech- 
nical rules  of  interpretation  have,  therefore,  been  adopted  by 


OH.  XXXVL—INTEBPBETATION  OF  TREATIES.        871 

writers  on  ethics  and  public  law,  to  explain  the  meaning  of  in- 
ternational compacts,  in  cases  of  doubt." 

§  12.  Grotius  on  interpretation.  Grotius  has  devoted  an  en- 
tire chapter  to  the  interpretation  of  difficult  and  ambiguous 
terms.  He  sets  out  with  the  saying  of  Cicero,  that,  "  When 
you  promise,  we  must  consider  rather  what  you  mean,  than  what 
you  say."  But  as  inward  motives  are  not  in  themselves  dis- 
cernible, we  can  determine  what  they  were  only  from  the  words 
used,  and  conjectures  drawn  from  other  parts  of  the  treaty,  and 
from  the  peculiar  circumstances  of  the  particular  case.  These, 
he  says,  must  sometimes  be  considered  together,  and  sometimes 
separately.  Words  are  not  to  be  strictly  construed  according 
to  their  etymology,  but  according  to  their  common  use,  as,  "  Use 
is  the  judge,  the  law,  and  rule  of  speech."  Technical  words, 
or  terms  of  art,  are  to  be  construed  according  to  their  meaning 
in  such  art.  Conjectures  are  to  be  drawn  from  the  subject  mat- 
ter, the  effect  of  the  term  used,  and  the  circumstances  under 
which  the  engagement  was  entered  into.  He  divides  things 
promised  into  three  classes,  favorable,  odious,  and  mixed.  Favor- 
able promises  are  those  which  carry  in  them  an  equality  and  a 
common  advantage ;  odious  promises  are  those  where  the  charge 
and  burden  is  all  on  one  side ;  and  mixed  promises  are  those 
which  partake  of  both  characters,  but  in  which  the  favorable 
predominates.  In  the  first,  he  says,  the  words  must  be  taken  in 
their  full  propriety,  as  they  are  generally  understood,  and  if 
ambiguous,  they  must  be  allowed  their  largest  sense.  In  the 
second,  the  words  are  to  be  taken  in  a  stricter  sense,  whether 
they  have  reference  to  subject  matter,  time,  or  circumstances.  In 
the  third  kind  of  promises,  the  words  are  to  be  taken  according 
to  the  character  of  the  particular  stipulation  in  which  they  oc- 
cur, or  of  the  particular  matter  or  circumstance  to  which  they 
refer. 

§  13.  Vattel's  rules.  Yattel  has  commented  largely  on  the 
distinctions  of  Grotius,  and  laid  down  twelve  general  rules  of  his 
own  in  regard  to  the  interpretation  of  treaties,  and  some  ten  addi- 


372        INTERNATIONAL   LAW  AND  LAWS  OF  WAR. 

tional  rules  applicable  to  treaty  stipulations  which  are  in  col- 
lision or  opposition  with  each  other.  Many  of  these  rules  are 
mere  truisms,  obvious  at  first  sight,  while  others  are  by  many 
deemed  erroneous,  and  all  very  diifusedly  discussed. 

§  14.  Rutherforth  on  interpretation.  Eutherforth  has  dis- 
cussed this  subject  with  his  usual  perspicuity  and  ability,  but  in 
a  manner  somewhat  diffuse.  We  will  attempt  but  a  brief  out- 
line of  his  remarks,  referring  the  reader  to  his  chapter  on  inter- 
pretation, the  perusal  of  which  will  afford  both  pleasure  and 
profit.  A  promise,  he  says,  gives  us  a  right  to  whatever  the 
promiser  designed  or  intended  to  make  ours.  But  his  design  or 
intention,  if  it  be  considered  merely  as  an  act  of  his  mind,  can- 
not be  known  to  any  one  beside  himself.  When,  therefore,  we 
speak  of  his  design  or  intention  as  the  measure  of  our  claim,  we 
must  necessarily  be  understood  to  mean  the  design  or  intention 
which  he  has  made  known  or  expressed  by  some  outward  work ; 
because  a  design  or  intention,  which  does  not  appear,  can  have 
no  more  effect,  or  can  no  more  produce  a  claim,  than  a  design 
or  intention  which  does  not  exist.  Hence,  the  way  to  ascertain 
our  claims,  as  they  arise  from  promises  or  contracts,  is  to  collect 
the  meaning  and  intention  of  the  promiser  or  contractor,  from 
some  outward  signs  or  marks.  The  collecting  of  a  man's  inten- 
tion from  such  signs  or  marks  is  called  interpretation. 

§  15.  Paley  on  promises.  The  remarks  of  Dr.  Paley,  in  his 
work  on  Moral  and  Political  Philosophy,  are  well  worthy  of 
attention,  being  as  applicable  to  questions  of  international  law 
as  to  questions  in  ethics.  He  says :  "  Where  the  terms  of  pro- 
mise admit  of  more  senses  than  one,  the  promise  is  to  be  ])er- 
formed  in  that  sense  in  which  the  promiser  apprehended  at  the 
time  that  the  promisee  received  it.''  "  It  is  not  the  sense  in 
which  the  promiser  actually  intended  it,  that  always  governs  the 
interpretation  of  an  equivocal  promise,  because,  at  that  rate,  you 
might  excite  expectations  which  you  never  meant,  nor  would  be 
obliged  to  satisfy.  Much  less  is  it  the  sense  in  which  the  pro- 
misee actually  received  the  promise;  for,  according  to  that  rule, 


CH.  XXXVL— INTERPRETATION  OF  TREATIES.        373 

you  might  be  drawn  into  engagements  which  you  never  de- 
signed to  undertake.  It  must,  therefore,  be  the  sense,  (for  there 
is  no  other  remaining,)  in  which  the  promiser  believed  that  the 
promisee  accepted  the  promise.  This  will  not  differ  from  the 
actual  intention  of  the  promiser,  where  the  promise  is  given 
without  collusion  or  reserve;  but  we  put  the  rule  in  the  above 
form  to  exclude  evasion  in  cases  in  which  the  popular  meaning 
of  a  phrase,  and  the  strict  grammatical  signification  of  the 
words  differ ;  or,  in  general,  wherever  the  promiser  attempts  to 
make  his  escape  through  some  ambiguity  in  the  expressions 
which  he  used.  Zemures  promised  the  garrison  of  Sebastia, 
that  if  they  would  surrender,  no  blood  should  be  shed.  The 
garrison  surrendered — and  Zemures  buried  them  all  alive.  Now 
Zemures  fulfilled  the  promise  in  one  sense,  and  in  the  sense,  too, 
in  which  he  intended  at  the  time ;  but  not  in  the  sense  in  which 
the  garrison  of  Sebastia  actually  received  it,  nor  in  the  sense  in 
which  Zemures  himself  knew  that  the  garrison  received  it; 
which  last  sense,  according  to  our  rule,  was  the  sense  in  which 
he  was,  in  conscience  bound  to  have  performed  it." 

§  16.  Other  modem  writers.  Many  efforts  have  been  made  by 
other  writers  to  lay  down  precise  and  positive  rules,  and  to 
frame  formulae  for  the  various  modes  of  interpretation.  Those 
of  Domat  and  Lieber  exhibit  much  learning  and  ingenuity,  and 
are  welt  worthy  of  attention ;  but  they  are  too  complicated  and 
metaphysical  to  afford  much  assistance  to  the  common  reader. 
Those  of  Mackelday,  Story,  and  Phillimore,  are  fewer  in  num- 
ber, and  of  a  more  general  and  simple  character. 

§  17.  Objections  to  arbitrary  rules  and  formulsB.  Savigny  re- 
gards the  civil  law  rules  of  interpretation — which  are  substan- 
tially those  of  Domat — as  affording  little  aid  beyond  that  which 
an  intelligent  and  dispassionate  consideration  of  each  particular 
case  would  furnish.  Sedgwick  thinks  it  "  as  vain  to  attempt  to 
frame  positive  and  fixed  rules  of  interpretation,  as  to  endeavor, 
in  the  same  way,  to  define  the  mode  by  which  the  mind  shall 
draw  conclusions  from  testimony." 

32 


374        INTERNATIONAL  LAW  AND  LAWS  OF  WAR. 

§  18.  Importance  of  well-established  principles  of  interpretation. 
But  while  we  fully  agree  with  Savigny  and  Sedgwick,  that 
metaphysical  classifications,  minute  sub-divisions,  and  arbitrary 
formulae,  are  not  calculated  to  facilitate  the  interpretation  and 
construction  of  laws,  it  must  not  be  inferred  that  all  rules  es- 
tablished for  that  purpose  should  be  rejected.  On  the  contrary, 
general  rules,  which  restrain  from  latitudinarian  construction,  and 
from  extravagant  and  false  interpretation,  have  received  the 
approval  of  the  most  learned  jurists  and  most  distinguished 
publicists  of  all  ages.  Indeed,  the  very  necessity  and  import- 
ance of  such  rules,  for  the  interpretation  of  constitutional  and 
statutory  laws,  have  led  some  authors  'into  the  extravagant 
nomenclature  and  minute  classification  which  are  here  objected 
to.  Sedgwick,  notwithstanding  his  objection  to  rules,  very 
justly  remarks  that  "  there  must  be  some  general  principles  to 
control"  the  construction  and  interpretation  of  laws,  the  subject 
being  too  important  "  to  be  left  to  the  mere  arbitrary  discretion 
of  the  judiciary." 

And  if  the  necessity  of  well-established  rules  for  the  inter- 
pretation of  laws  be  generally  admitted,  it  certainly  will  hardly 
be  denied  that  such  rules  are  equally  important  in  connection 
with  international  jurisprudence.  Some  of  the  bloodiest  wars 
that  have  been  inflicted  upon  the  human  race  have  originated  in 
a  conflict  of  opinions  respecting  the  interpretation  of  treaty 
stipulations. 


INDEX. 


A. 

Aberdeen  (Lord),  pretensions  of,  to  right  of 
visit  in  time  of  peace,  opposed  by  older 
English  writers,  '265;  discussion  of  with 
Mr.  Webster,  266. 

Abrogation,  of  treaties  by  declaration  of 
war,  166. 

Accommodation,  of  international  disputes, 
137. 

Acquisition,  of  domain  by  a  state,  75. 

Acts,  of  its  rulers  and  officers,  responsibility 
of  a  state  for,  131 ;  of  its  citizens,  132. 

Adjudication,  prizes  to  be  brought  in  for, 
317. 

Admiralty  cmirts,  in  England  and  the 
United  States.  325. 

Admiralty  jurisdiction,  of  prize,  in  Eng- 
land and  the  United  States,  325. 

Affirming  gun,  use  of  an,  268. 

Agents,  commercial,  see  Consuls. 

Aggrandizement,  of  a  neighboring  state, 
147. 

Alienation,  of  territory,  75,  337,  348. 

Allegiance,  from  origin,  305;  changed  by 
naturalization,  305;  does  not  affect  domi- 
cil,  306 ;  of  inhabitants  of  occupied  terri- 
tory, 336 ;  transfer  of  by  conquest,  341. 

Alliance,  treaties  of,  106;  warlike,  186;  offen- 
sive and  defensive,  187  ;  obligation  of,  187. 

Allies,  in  war,  cannot  trade  with  a  common 
enemy,  161;  not  necessarily  associates  in 
war,  186;  may  make  separate  treaties  of 
peace,  but  must  treat  in  concert,  351. 

Alteratiftn,  of  a  license  to  trade,  304. 

Alternat,  usage  of  the,  65. 

Ambassadors,  rank  of,  108 ;  see  PuMic  Min- 
isters generally. 

Amity,  treaties  of,  107. 

AmneMy,  implied  in  a  treaty  of  peace,  352. 

Arbitration,  in  international  disputes,  138. 

Archives,  public,  generally  exempt  in  war, 
207. 

Armed,  cruisers,  see  Privateers. 

Armistice,  see  Truce. 

Arms,  contraband  of  war,  260. 

Army,  increase  of,  58;  passage  of  through 
neutral  territory,  232;  asylum  to,  235; 
salutes  by,  71. 

Art,  works  of,  how  far  exempt  in  war,  208. 

Assassination,  of  an  enemy,  179. 

Associates,  in  war,  188. 

Assignments,  in  bankruptcy,  93. 


Asylum,  right  of,  in  war,  233. 
AttacJiSs,  to  an  embassy,  110. 
Aubaine,  droit  d',  87. 
Audience,  given  to  a  public  minister,  117. 

B. 

Bankruptcy,  laws  of,  90. 

Says,  jurisdiction  over,  78. 

belligerents.  Pacific  Intercourse  of,  281-294; 
within  neutral  jurisdiction,  231. 

Belligerent  right,  of  capture,  317 ;  of  visit 
and  search,  264-272;  of  asylum,  233. 

Belts,  sovereignty  of  Denmark  over  the-,  79. 

Blockades,  discussion  of,  241-253;  interdict 
intercourse  with  places  blockaded,  241; 
autliority  to  institute,  241;  differ  from 
sieges,  241;  constructive  or  paper,  242; 
ancient  text-writers  and  treaties  on,  242; 
in  the  wars  of  Napoleon,  243 ;  declarations 
in  regard  to,  in  1854  and  1856,  243;  de  facto 
and  public,  243;  not  raised  by  accidental 
absence  of  blockading  force,  244 ;  if  block- 
ading vessels  be  driven  aw^ay  by  force  or 
removed  for  other  duty,  244,  245 ;  if  irregu- 
larly maintained,  245;  effect  on  interior 
communications,  245 ;  breach  of,  a  criminal 
act.  246;  public  notification  of,  246;  gen- 
eral notoriety  of,  247 ;  presumptive  know- 
ledge of,  248;  proof  of  actual  knowledge 
of  or  warning,  248;  attempt  to  enter  a 
blockaded  port,  248 ;  inception  of  voyage 
to  enter,  249;  distant  voyages  in  case  of 
de  facto  blockades,  249;  when  presump- 
tion of  intention  to  enter  cannot  be  re- 
pelled, 250;  neutral  vessel  entering  in  bal- 
last, 250 ;  declaration  of  master,  250 ;  delay 
in  obeying,  or  disregard  of  warning,  251 ; 
when  ingress  is  excused,  251 ;  violation  of 
by  egress,  252;  when  egress  is  allowed, 
252;  penalty  for  breach  of,  252;  when 
cargo  is  not  condemned,  253;  duration  of 
the  offense  of  breach  of,  253 ;  a  license  to 
trade  no  protection  for  breach  of,  304. 

Booty,  definition  of,  214;  belongs  primarily 
to  the  state,  214;  distribution  of,  in  differ- 
ent states,  214. 

c. 

Capacity,  law  of  personal,  87. 
Capitulations,  military,  286. 
Capture,  of  booty,  when  complete,  206. 

375 


376 


IJfDEX. 


Capture,  maritime,  what  constitutes,  317 ;  to 
whose  benefit  it  enures,  317  ;  title  to  when 
changed,  317;  where  taken  for  adjudica- 
tion, 317;  of  joint,  generally,  318-322 ;  col- 
lusive, 322. 

Carriage,  of  a  public  minister,  114. 

Ca/roline,  case  of  the,  142. 

Cartels,  for  the  exchange  of  prisoners,  289. 

Cartel  ships,  289. 

CeretHonial,  military  and  maritime,  66;  how 
regulated,  67 ;  in  the  narrow  seas,  67 ;  in 
foreign  ports  and  on  the  high  seas,  67; 
treaties  regulating,  68;  general  rules  of 
text-writers  in  regard  to,  68;  between 
ships  and  forts,  69 ;  between  ships  in  for- 
eign ports,  70 ;  United  States  Regulations 
in  regard  to,  71 . 

Ce^rtlftcate,  of  registry  of  a  ship,  22. 

Certificates,  given  by  consuls,  127. 

Character,  national,  how  determined,  305- 
316;  allegiance  and  naturalization,  305; 
effect  of  domicil  on,  307-310 ;  of  ministers, 
consuls,  and  public  olficers,  310 ;  of  other 
persons,  311,  312;  native,  easily  reverts, 
313;  during  a  war,  313;  effect  on,  of  mili- 
tary occupation  and  complete  conquest, 
314;  of  cession,  revolution  and  insurrec- 
tion, 314 ;  of  a  particular  trade  and  habi- 
tual employment,  315,  316;  of  ships  and 
goods,  316. 

Charges  d'affaires,  109. 

Civil  Jurisdiction,  in  case  of  public  minis- 
ters, 113. 

Civil  structures,  generally  exempt  in  war, 
208. 

Civil  wars,  48, 152. 

Colony,  a  part  of,  but  not  complete  state,  43. 

Collusive  captures,  322. 

Colors,  see  Flag. 

Comity,  as  a  branch  of  international  law,  33. 

Commendable  motives,  of  a  war,  147. 

Commerce,  treaties  of,  107. 

Commerce/n,  case  of  the,  258. 

Commercia  belli,  281. 

Commercial  laws,  as  a  source  of  interna- 
tional law,  38. 

Commissions,  of  consuls,  123. 

Compromise,  of  international  disputes,  138. 

Concealment,  of  papers  of  a  ship,  270. 

Conclusiveness,  of  foreign  sentences  and 
judgments,  97,  328. 

Confederation,  of  states,  46. 

Confiscation,  of  debts,  163, 164 ;  of  property 
for  violation  of  laws  of  war,  210. 

Congresses  and  conferences,  for  the  set- 
tlement of  international  disputes,  139. 

Conquest,  wars  of,  153;  when  complete,  340  ; 
effect  of,  on  allegiance  of  inhabitants  of 
conquered  territory,  341;  on  municipal 
laws  of  conquered  territory,  344 ;  on  laws 
introduced  during  military  occupation, 
345 ;  on  titles  to  private  property,  347 ;  on 
the  property  of  the  state,  348;  payment 
of  debts  of  the  state  to  the  conqueror,  349. 

Constructive  blockades,  242. 

Constructive  cajttures,  318. 

Consuls,  and  commercial  agents,  122-129; 
origin  of,  122 ;  general  powers  of  in  modern 
times,  122;  organization  of,  122;  commis- 
sion and  exequatur  of,  123 ;  have  no  diplo- 
matic character,  123 ;  are  subject  to  local 
jurisdiction,  123;  have  no  rank  except 
among  themselves,  124;  enjoy  certain 
rights  and  exemptions,  124 ;  when  foreign- 


ers, 125;  when  natives  of  the  country 
where  they  reside,  125;  jurisdiction  over 
in  the  United  States,  125 ;  powers  of  arbi- 
tration, 126;  marriages  and  divorces  by, 
126;  grant  passports  and  certificates,  126; 
can  afford  no  refuge  from  process,  127;  if 
they  engage  in  trade,  127;  of  Christian 
countries  in  the  East,  128;  have  jurisdic- 
tion over  their  own  countrymen,  128 ;  have 
voluntary,  but  not  compulsory  jurisdiction 
over  foreigners,  128 ;  national  character  of, 
310. 

Contraband  of  tear,  255-262 ;  definition  of, 
255;  articles  always  confiscated,  255;  an- 
cient rule  in  regard  to  ships  carrying,  255 ; 
modern  rule,  256;  cases  where  the  carry- 
ing ship  is  also  condemned,  256;  plea  of 
ignorance  or  force,  256;  inception  of  voy- 
age completes  offense,  256 ;  return  voyage, 
257 ;  if  not  contraband  at  time  of  seizure, 
257 ;  articles  transferred  from  one  port  to 
another,  257 ;  if  for  enemy's  use  in  a  neu- 
tral port,  257;  disagreement  as  to  what 
articles  are,  258,  259;  munitions  of  war 
are  always,  260;  other  articles,  250;  pro- 
visions, 261;  ancient  rule  of  preemption, 
262 ;  British  rule  contested,  262. 

Contracts,  law  of,  86;  in  regard  to  the  ship- 
ment of  goods,  217,  &c. 

Contributions,  imposed  during  war,  210; 
levied,  but  not  collected  at  time  of  peace, 
355. 

Conventional  law  of  nations,  32. 

Conveying  enemy's  despatches,  278 ;  enemy's 
ministers,  officers,  and  troops,  277 ;  case  of 
the  Trent,  279. 

Convoy,  right  to  search  vessels  under  neutral, 
268;  neutral  vessels  under  enemy's,  269; 
condition  in  licenses  to  take,  303. 

Courtesy,  international,  133. 

Courts,  decisions  of,  as  a  source  of  interna- 
tional law,  37,  38 ;  do  not,  as  a  general 
rule  take  judicial  notice  of  foreign  laws, 
97 ;  authentication  of  foreign  judgments, 
98. 

Courts  of  Admiralty,  see  Admiralty. 

Courts  of  Prize,  see  I\ize  Courts. 

Credence,  letter  of,  to  ministers,  116. 

Crimes,  punishable  in  state  where  committed, 
90 ;  of  treason  punishable  by  state,  where- 
soever committed,  90;  committed  on  the 
high  seas,  94. 

Criminal  Jurisdiction,  of  a  state,  95. 

Criminal  sentences,  96. 

Criminals,  extradition  of,  96. 

Custotnary  law  of  nations,  32. 

Custom,,  as  a  source  of  international  law,  32. 


Damages,  when  captors  are  liable  for,  323. 

Danish,  sound  dues,  79. 

Death,  of  a  public  minister,  119 ;  of  a  sover- 
eign, 120. 

Debts,  of  states,  contracted  before  war,  to  a 
belligerent  state,  163;  to  subjects  of  a 
belligerent  state,  164 ;  of  individuals  of  one 
to  individuals  of  another  belligerent  state, 
164;  effect  of  military  occupation  on,  338; 
of  complete  conquest  on,  349. 

Deceitful  intelligence,  in  war,  182. 

Declaration  of  war,  and  its  effects,  158- 
171;  by  whom  made,  158;  ancient  and 


INDEX. 


377 


modem  praoRce,  1 58 ;  sometimes  omitted, 
and  sometimes  co^ditioiuil,  159;  effect  of 
on  individuals, and  commercial  intercourse, 
160;  on  subjects  qi  an  ally,  161;  on  sub- 
jects of  an  enemy  in  our  territory,  161 ;  on 
their  property,  162 ;  on  debts,  163 ;  on 
treaties,  166 ;  on  local  civil  laws,  166. 

Jieclaratkni  of  martial  law,  167 ;  effect 
on  privilege  of  the  writ  of  habeas  corpus, 
170. 

Defensive  tears,  150. 

Dependent  states,  47,  99. 

Despatches  of  an  enemy,  carried  by  a  neu- 
tral vessel,  278, 279. 

Destruction,  useless,  of  private  property  in 
war,  212. 

Detention,  of  a  vessel  for  search,  267. 

Diplomatic  agents,  see  Public  Ministers. 

Diplomatic  papers,  as  a  source  of  interna- 
tional law,  40. 

Dismissal  of  a  minister,  120. 

Distribution  of  prize  money,  322. 

Divine  latv,  as  a  source  or  test  of  interna- 
tional law,  36. 

Divorce,  law  of,  89. 

Domain,  defined,  74,  eminent,  74. 

Domieil,  defined,  307 ;  intention  the  control- 
ling principle  in  determining,  307  ;  of  resi- 
dence, 308 ;  from  domestic  ties,  308 ;  from 
exercise  of  political  rights,  308 ;  from  busi- 
ness, 308;  of  a  wife,  minor,  student,  sol- 
dier, prisoner,  exile,  and  fugitive,  311 ;  ef- 
fect of  municipal  laws  on,  312;  of  treaties 
on,  31 2  ;  a  merchant  may  have  several,  at 
the  same  time,  312. 

Duties,  of  states  towards  each  other,  130-135. 

Duty,  of  moderation,  in  international  dis- 
putes, 137 ;  of  a  state  to  provide  for  its 
prisoners  of  war,  195. 


E. 

^Egress,  of  vessels  from  blockaded  ports,  251. 

Ihnbargoes,  as  a  means  of  settling  interna- 
tional disputes,  142. 

Embassy,  secretary  of,  110. 

Jtlmigration,  plea  of,  not  admitted  for  illegal 
acts  of  citizens,  133. 

Eminent  domain,  defined,  74. 

Emjdoyment,  efifect  of  national  character, 
316. 

Enmity,  personal,  differs  from  belligerent 
hostility,  185. 

Enemy,  public,  185;  subjects  and  property 
of,  in  belligerent  territory  at  beginning  of 
war,  161, 162;  debts  due  by  a  state  to,  163; 
to  subjects  of,  163 ;  by  subjects  of  one  to 
subjects  of  another,  164;  rights  of  war 
against  persons  of,  190-202;  to  property  of 
on  land,  204-214;  to  property  of  on  the 
high  seas,  215-222 ;  trade  with,  223-229. 

EnlLstnient,  of  men  in  neutral  territory,  235. 

Envoy,  character  of,  109. 

Equality,  of  states,  61. 

Escheat,  laws  of,  88. 

Etiquette,  see  Ceremonial. 

Exclusive,  criminal  and  civil  legislation,  85; 
jurisdiction  of  a  state  over  real  property, 
92;  jurisdiction  of  a  state  over  its  own 
captures,  324,  328. 

Exchange,  of  prisoners  of  war,  193;  of  sa- 
lutes, 68,  69. 

Exetnption,  from   local  jurisdiction   of  a 

32*  2 


public  minister.  111 ;  of  his  family  and  de- 
pendents, 110-112;  of  his  house,  114;  of 
his  real  estate,  115;  of  non-combatants 
from  extreme  rights  of  war,  141 ;  of  pri- 
vate property  on  land,  209;  of  vessels  of 
discovery,  221 ;  of  fishing  boats,  222. 

Exequatur,  of  consuls,  123. 

Extent,  of  maritime  territory  and  jurisdic- 
tion, 95. 

Exterritoriality,  fiction  of,  in  regard  to 
public  ministers,  111. 

Extradition,  of  criminals,  96. 

P. 

Eailure,  in  matters  merely  ceremonial  no 
cause  of  war,  134. 

Faith,  (good),  must  be  observed  in  all  trea- 
ties, 368. 

False  flag,  use  of,  271. 

Families,  of  public  ministers,  exempt  from 
local  jurisdiction,  110. 

Federal  union,  character  of,  46. 

Fishing  vessels,  exempt  from  capture,  222. 

Flag,  salutes  with,  68 ;  a  vessel  of  war  may 
sail  or  chase,  but  cannot  attack,  under  a 
false,  182;  of  truce,  293;  of  protection  to 
hospitals,  etc.,  294. 

Florida,  case  of  the,  233. 

Foreigners,  when  reprisals  may  be  made  in 
favor  of,  143. 

Foreign,  interference  in  internal  affairs  of  a 
state,  53,  54 ;  laws  how  proved,  97 ;  judg- 
ments, how  authenticated,  98. 

Forfeiture,  of  interest  in  prize,  322. 

Forum  contractus,  91. 

Forum  rei  sitce,  91. 

Forum  domicilii,  91. 

Fortifications,  as  a  means  of  self-preserva- 
tion, 58. 

Free  ships,  free  goods,  maxim  of,  275. 

Full  potver,  of  public  ministers,  116. 


Goods,  on  the  high  seas,  difficulty  in  deter- 
mining ownership  of,  at  time  of  capture, 
216;  rule  as  to  consignee  of,  217;  where 
contract  and  shipment  are  made  in  con- 
templation of  war,  217 ;  where  contract  is 
made  before,  and  shipment  during  war, 
217  ;  if  both  be  made  in  time  of  peace,  217  ; 
shipment  at  risk  of  neutral  consignee,  217 ; 
if  neutral  consignor  become  an  enemy  dur- 
ing voyage,  218 ;  acceptance  in  transitu  by 
neutral  consignee,  218 ;  general  rules  as  to 
national  character  of,  219,  220. 

Government,  changes  in  form  of,  52. 

Guaranty,  treaties  of,  106. 


H. 

Nigh-seas,  enemy's  property  on  the,  215-222. 
History,  as  a  source  of  international  law,  36. 
Honors,  see  Ceremonial. 
Hostages,  for  ransom  of  vessels,  292. 


I. 

Impressment,  of  seamen  from  neutral  ves- 
sels, 271. 


X 


878 


INDEX. 


Independence,  rights  of,  in  sovereign  states, 
52;  wars  of,  152. 

Ingress,  of  vessels  into  blockaded  ports,  261. 

Innocent,  passage  over  neutral  waters,  236. 

Inspection,  of  ship's  papers  in  time  of  war, 
267. 

Intercourse,  pacific,  of  belligerent  states, 
281-294. 

Interference,  of  one  state  in  affairs  of  an- 
other, 53, 

International  lata,  see  Law. 

Internuncios,  of  the  Pope,  rank  of,  109. 

Interpretation,  of  treaties,  370-374. 

Intervention,  wars  of,  154. 

Inviolability,  of  public  ministers.  111;  of 
neutral  territory,  231. 

Islands,  71,  77,  81. 


tTews,  international  law  of  the,  18. 

Judgments,  proof  of  foreign,  98. 

Jura  magistatis,,  73. 

Jurisdiction,  of  a  state,  over  its  citizens,  91 ; 
over  real  property,  92 ;  over  personal  pro- 
perty, 92 ;  over  public  and  private  vessels, 
94;  extent  of,  in  civil  and  criminal  mat- 
ters, 95 ;  of  prize  courts,  324. 

Jus,  civile,  and  jus  gentium,  of  the  Bo- 
mans,  19. 

Jus  postliminii,  358. 


laJces,  right  of  property  in,  81. 

language,  diplomatic,  66. 

latv,  Roman  civil,  as  a  source  of  internar 

tional  law,  37. 
law,  commercial,  as  a  source  of  international 

law,  38. 
law,  the  divine,  36. 
latv,  of  nature,  31. 
law,  of  real  property,  85. 
latv,  of  personal  property,  85. 
law,  of  contracts,  86. 
law,  regulating  personal  capacity  and  duty, 

law,  of  bankruptcy,  90. 

laiv,  of  escheat,  88. 

latv,  of  prize,  329. 

latv,  foreign  proof  of,  97. 

law.  International,  defined,  30;  conven- 
tional, 32;  customary,  32;  voluntary,  32; 
public  and  private,  33;  positive,  31;  of 
comity,  33;  history  of,  17-28;  sources  of, 
35-40;  history,  36;  the  Roman  civil  law, 
37 ;  decisions  of  prize  courts,  38 ;  decisions 
of  mixed  tribunals,  37;  ordinances  and 
commercial  laws,  38;  decisions  of  local 
courts,  38;  text-writers,  38;  treaties,  39; 
diplomatic  correspondence,  40. 

latv,  martial,  167-171. 

law,  military,  168. 

legate,  rank  of,  109. 

legation,  rights  of,  99. 

legislation,  right  of,  85. 

letters,  of  credence,  to  ministers,  116. 

letters  of  marque,  175. 

letters  of  reprisal,  175. 

Levies  en  masse,  172, 175. 

lex  domicilii,  86,  93. 

lex  loci  contractus,  86. 

lex  fori,  93. 


libraries,  public,  liability  of  to  capture,  208. 
licenses  to  trade,  296-304. 
loans,  of   money  by   neutrals  to  belliger- 
ents, 236.  ^ 

M. 

Marque,  letters  of,  175. 

Marriage,  laws  of,  88. 

Martial  latv,  see  Law  Martial. 

Mediation,  in  international  disputes,  138. 

Military  law,  see  Law  Military. 

Ministers,  public,  rights  and  duties  of,  108- 
121;  no  distinction  of,  in  ancient  times, 
108;  modern  classification  of,  108;  family 
of,  110;  inviolability  of.  111;  exemption 
of  from  local  jurisdiction.  111;  voluntary 
submission  of  to  local  jurisdiction,  112; 
how  punished,  113;  testimony  of,  how 
taken,  114;  exemption  of  house  of,  114; 
freedom  of,  as  to  religious  worship,  115; 
letters  of  credence,  full  powers,  and  in- 
structions of,  116;  notification  of  appoint- 
ment and  reception  of,  117 ;  passports  and 
safe  conducts  to,  118;  missions  of,  termi- 
nated, 118,  119,  120 ;  respect  due  from,  to 
local  authorities,  121;  national  character 
of,  310. 

Municipal  laws,  enforcing  neutrality,  237; 
how  far  prize  courts  are  governed  by,  329. 

N. 

Narrow  seas,  equality  in  the,  67. 

National  character,  305-316. 

Naturalization,  305. 

Navigation,  treaties  of,  107. 

Negotiation  and  treaty,  rights  of,  99-107. 

Neutrality,  rights  and  duties  of,  230. 

Neutral  convoy,  268. 

Nmtral  character,  proof  of,  276. 

Neutral  diitirs,  violation  of,  273-280. 

Neutful  itiriolability,  231. 

Neutral  jiorts,  right  of  asylum  in,  233;  arm- 
ing belligerent  vessels  in,  234;  pursuit  of 
enemy  from,  236. 

Neutral  rights,  cannot  be  claimed  unless 
neutral  duties  are  performed,  273. 

Neutral  territory,  inviolability  of,  231. 

Neutral  vessels,  under  enemy's  convoy,  262; 
impressment  of  seamen  from,  271 ;  enemy 
goods  in,  275 ;  under  enemy  flag  and  pass, 
276;  in  enemy's  service,  277;  transporting 
military  persons  and  despatches  of  enemy, 
277 ;  engaging  in  exclusive  national  com- 
merce of  enemy,  315 ;  carrying  supplies  to 
enemy  in  neutral  ports,  257. 

Neutral  waters,  armed  belligerent  cruisers 
in,  234;  passage  over,  236. 

Non-commissioned  vessels,  captures  by, 
321. 

Non-combatants,  exemption  of,  191. 

Nuncios,  of  the  Pope,  rank  of,  109. 

o. 

OatJis,  in  treaties,  368. 

Occupation,  rights  of  military,  330-338. 

P. 

Pass,  neutral  vessels  under  enemy's,  276. 
Passports,  consuls  give  and  vis6, 126;  given 


INDEX. 


879 


in  war,  287 ;  may  be  revoked,  288 ;  viola- 
tion of,  288;  ransom-bills  as,  290. 

Pacific  intercourse,  of  belligerents,  281- 
294. 

Peace,  treaties  of,  350-356, 

PirateSf  how  punished,  35, 

Poisoning  an  enemy,  179. 

Postliminy  and  recapture,  rights  of,  358- 
366. 

Postliminy/,  right  of,  defined,  358 ;  in  regard 
to  personal  status  and  rights,  358 ;  in  re- 
gard to  things,  369 ;  right  of,  belongs  ex- 
clusively to  a  state  of  war,  359;  in  regard 
to  allies,  359;  in  neutral  territory,  360;  in 
regard  to  real  and  personal  property,  360 ; 
in  regard  to  towns  and  provinces,  361 ;  to 
subjugated  states,  361,  362;  to  maritime 
captures,  363. 

Preemption,  262. 

Prerogative,  73. 

Prisoners  of  tvar,  entitled  to  quarter,  192 ; 
made  slaves,  in  ancient  times,  192;  ransom 
and  exchange  of,  193 ;  release  of  on  parole, 
194;  United  States  Regulations  in  regard 
to  paroles,  194;  general  rules  in  regard  to 
support  of,  195;  character  of  support  to 
be  given,  196 ;  ill-treatment  and  starvation 
of,  197  ;  may  they  be  killed  in  any  case  ?  198. 

Privateers,  use  of,  175;  efforts  to  abolish, 
176;  attitude  of  the  United  States  in  re- 
spect to,  176 ;  by  whom  commissioned,  176 ; 
vessels  of  neutral  states  acting  as,  177 ;  if 
declared  pirates  by  treaty  or  local  laAV,  177. 

Private  international  latv,  see  Law. 

Prize,  what  constitutes  a,  317 ;  to  whose  bene- 
fit it  enures,  317  ;  title  to,  when  changed, 
317;  where  taken  for  adjudication,  317; 
joint  captures  of,  318. 

Prize  courts,  jurisdiction  and  proceedings 
of,  324-o29 ;  by  what  courts  validity  of 
maritime  captures  are  determined,  324; 
distinct  from  municipal  courts,  325;  in 
England  and  the  United  States,  325;  place 
of  session,  326;  decision  of,  conclusive, 
328 ;  when  jurisdiction  of  may  be  inquired 
into,  328;  laws  governing,  329;  proceed- 
ings of,  329. 

Proceedings,  in  prize  courts,  329. 

Property,  defined,  74;  right  of  a  state  to 
own,  74;  acquisition  and  disposition  of,  by 
a  state,  75. 


Rank,  of  states,  61,  63 ;  of  ministers,  63. 

Jiansoni,  of  prisoners,  290 ;  of  prize,  290. 

Jtatificntion,  of  treaties,  102. 

Meal  propertff,  law  of,  85. 

Recapture,  rules  governing,  363-366. 

Reciprocity,  rule  of,  199. 

Recognition,  of  new  states  and  titles,  41,  61. 

Regalia,  meaning  of  term,  73. 

Reprisals,  140. 

Republics,  rank  of,  64. 

Resident  ministers,  109. 

Resistance,  to  search,  effect  of,  268. 

Retaliation,  us  a  means  of  redress,  140 ;  in 
war,  197,  199. 

Retfrrtion,  as  a  means  of  redress,  139. 

Re-volution,  wars  of,  161. 

Rights,  of  independence  and  self-preserva- 
tion, 52-59;  of  equality,  67-71;  of  pro- 
perty and  domain,  73-84;  of  legislation 
and  jurisdiction,  85-98;   of  legation  and 


treaty,  99-107;  of  public  ministers,  108- 
121 ;  of  neutrals,  230-240;  of  captors,  317- 
323;  of  military  occupation,  330-338;  of 
complete  conquest,  340-349;  of  postliminy 
and  recapture,  358-306;  of  visitation  and 
search,  264-272. 
Rivers,  rights  of  jurisdiction  over,  and  navi- 
gation of,  81;  as  boundaries,  82;  use  of 
banks  of,  83. 


s. 

Safeguards  and  safe  conducts,  287,  288. 

Sails,  salutes  with,  68. 

Salutes,  66-71. 

Salvage,  civil  and  military,  363;  allotment 

of,  364. 
Search,  right  of,  in  war,  264. 
Secretary,  of  legation  or  embassy,  110. 
Seizures,  141. 
Semi-sovereign  states,  47. 
Semonce,  or  affirming  gun,  268. 
Servants,  of  ministers.  111. 
Ships,  salutes  by,  68-70;   decoration  of,  in 

foreign  ports,  68. 
Shores,  sovereignty  of,  77. 
Sieges,  distinguished   from  blockades,  141; 

effect  of,  on  cT)mmunications  by  sea,  246. 
Slavery,  under  the  Roman  law,  358. 
Solemn,  and  non  solemn  wars,  156. 
Sovereign  states,  42. 
Sovereignty,  of  states,  42-51. 
Spies,  laws  of  war  in  regard  to,  183. 
Sponsions,  meaning  of  term,  103. 
States,    sovereign,   42;    semi-sovereign,    and 

dependent,  47. 
Stratagems,  in  war,  181. 
Subsifly,  and  succor,  treaties  of,  188. 
Surprises,  in  war,  180. 

T. 

Taxes,  on  property  of  public  ministers,  115. 

Tenders,  captures  by,  321. 

Territory,  modes  of  acquiring,  75 ;  disposi- 
tion of,  75;  extent  of  maritime,  76;  in- 
cludes coasts  and  islands.  77 ;  in  regard  to 
the  sea,  78,  79,  80 ;  to  lakes,  81 ;  to  rivers, 
82-84;  no  hostilities  to  be  permitted  in 
neutral,  231;  passage  of  troops  through 
neutral,  232;  enlisting  men  in  neutral, 
235;  military  occupation  of  hostile,  330- 
338;  our  own,  occupied  by  an  enemy,  336; 
neutral,  so  occupied,  336 ;  comiuest  of,  how 
completed,  340;  allegiance  of  inhabitants 
of  conquered,  341 ;  laws  of  conquered,  344 ; 
distinction  in  English  law  between  con- 
quered and  discovered,  345-347. 

Text-tvriters,  as  a  source  of  international 
law,  38. 

Titles,  of  sovereigns  and  states,  61. 

Trade,  of  subjects  with  an  enemy,  160;  of 
allies  with  a  common  enemy,  161;  licenses 
to,  296-304. 

TraitO'VS,  may  be  punished  although  captured 
as  prisoners  of  war,  153;  military  traitors, 
201. 

Treaties,  as  a  source  of  international  law,  39 ; 
right  to  make,  102;  to  be  ratified,  102; 
legislation  to  give  effect  to,  103 ;  divisions 
of,  105-107. 

Trent,  cjise  of  the,  279. 

Truce,  flag  of,  293. 


380 


INDEX. 


Truces,  power  to  make,  282;  acts  of  indi- 
viduals ignorant  of,  283;  what  may  be 
done  during,  283;  interpretation  of,  285; 
renewal  of  hostilities  after,  285. 


Union,  of,  states,  45 ;  a  personal,  45 ;  a  real, 
46;  an  incorporate,  46;  a  confederate,  46; 
a  composite,  47. 

Uti,  posaedetis,  maxim  of,  352. 

V. 

Visitation  and  search,  right  of,  264-272. 

w. 

War,  effects  of  a  civil,  on  sovereignty,  48  ;  ar- 
bitration between  parties  in  a,  55;  when 
reprisals  are  followed  by,  143;  just  causes 
of,  145-149;  different  kinds  of,  150-157; 
definition  of,  150;  divisions  of,  by  military 
writers,  historians  and  publicists,  150 ;  of 
insurrection  and  rebellion,  151 ;  of  revolu- 
tion, 152;  of  independence,  152;  of  opin- 
ion, 152;  civil,  152;  general  laws  of,  apply 


to  civil,  153;  of  conquest,  150;  national, 
154;  of  intervention,  154;  public,  154;  pri- 
vate and  mixed,  155 ;  perfect  and  imper- 
fect, 156;  solemn  and  non  solemn,  156; 
lawful  and  unlawful,  157;  declaration  of, 
and  its  effects,  158-171;  by  whom  to  be 
declared,  158;  ancient  and  modern  prac- 
tice, 158 ;  declaration  of,  sometimes  omit- 
ted, 159 ;  conditional  declaration,  159 ;  ob- 
ject of  a  declaration  in  a  defensive,  159 ; 
effect  of  declaration  of,  on  individuals  and 
commerce,  160 ;  on  intercourse  of  bellige- 
rents, 161;  on  property  of  enemy,  162;  on 
debts,  163;  on  treaties,  166;  on  local  civil 
laws,  and  the  jurisdiction  of  courts,  166- 
171;  means  and  instruments  of,  172-184; 
allies  and  associates  in,  185-189 ;  rights  of, 
as  to  enemy's  person,  190-202 ;  as  to  ene- 
my's property  on  land,  204-214;  as  to 
enemy's  property  on  the  high  seas,  215-222 ; 
neutrality  in,  2.30;  contraband  of,  255-262 ; 
right  of  visitation  and  search  in  time  of, 
264-272 ;  pacific  intercourse  of  belligerents 
during,  281-294 ;  licenses  to  trade  during, 
29&-304. 
Wife,  of  a  public  minister,  exemption  of,  110 ; 
domicil  of  a,  311. 


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